
    The Proprietors of Charles River Bridge, in Equity, versus The Proprietors of Warren Bridge et al.
    
    Under St. 1827, c. 88, giving relief in equity in cases of waste and nuisance, this Court has equity jurisdiction in regard to nuisances of a private nature ; such as establishing without right a bridge so near to one before rightfully existing, as to diminish the profits accruing from tolls ; there not being in such case a plain, adequate and complete remedy at law.
    Whether in regard to some public nuisances, as where the health or comfort of a neighborhood is affected, the Court has not similar jurisdiction, at least so far as to procure immediate relief by injunction, qtuBre.
    
    The several statutes giving equity jurisdiction to this Court are not at variance with the 15th article of the Declaration of Rights, securing a right to a trial by jury in all controversies concerning property (certain cases excepted), for whenever a party shall require that any controverted fact be tried by a jury, the Court by force of that article will order an issue for that purpose.
    Upon a bill in equity filed by the proprietors of a toll bridge built many years ago under authority from the legislature, praying for an injunction to restrain the defendants from erecting another bridge so near as to interfere with the plaintiffs* franchise, the Court refused to grant a temporary injunction before a hearing on the merits, on the grounds, — that die defendants likewise professed to act under authority from the legislature, and denied the exclusive right of the plaintiffs to the extent claimed by them, ■— and that the injury which the plaintiffs might suffer by the delay was not in its nature irreparable.
    This was a bill praying for an injunction to restrain the defendants from building a bridge which they had begun to erect by virtue of an act of the legislature, and also from suffering passengers to go over the same. The facts alleged in the bill were as follows :—That the plaintiffs were made a corporation by an act passed March 8, 1785, and were authorized to erect a bridge over a navigable river, called Charles River, between Boston and Charlestown, where an ancient ferry was before kept; that the bridge was designed to accommodate all passengers of every description, during the term of forty years, on a certain line of travel leading to and from the southerly part of Charlestown from and to the northerly part of Boston, as delineated on a plan annexed to the bill; that by the same act, and for the purpose of reimbursing the money expended in building and supporting the bridge, the plaintiffs were authorized to take, for their sole benefit, certain tolls of all passengers, as specified in the act; which tolls were to continue forty years from the day of opening the bridge for passengers That certain duties and obligations in favor of the public were imposed upon the plaintiffs ; as that the bridge should be of certain dimensions and be lighted, as specified in the act, and that the draw should be lifted without any toll, for all vessels passing the same, except in certain cases otherwise provided for. That the proprietors should also pay annually to the President and Fellows of Harvard College, (who were alleged to be the former owners of the ferry,) 666 dollars 67 cents, during said term ; at the end of which, the bridge should be left in good repair and revert to the Commonwealth ; saving to the college a reasonable annual compensation for the annual income of the ferry which they might have received, had not the bridge been built. That the plaintiffs accepted the act of incorporation according to its terms, and thereby a contract was created between the Commonwealth and themselves conform-ably to the act. That the President and Fellows of Harvard College, before the passing of the act, had become and were the owners of the ancient ferry, exclusive of the right of any person or corporation to maintain a ferry or other permanent method of transporting by boats or otherwise, for hire or toll, any passengers, cattle or vehicles travelling to and from the southerly part of Charlestown from and to the northerly part of Boston ; that no other ferry across the river was ever established or used for the travel of passengers between Boston and the opposite shore of the river ; and, that the act of incorporation was passed with the consent of the President and Fellows of Harvard College ; by means whereof the plaintiffs became the possessors and grantees of the President and Fellows in the ferry, during the term of forty years, and entitled to the exclusive right of erecting a bridge over the river, for the use of all persons going upon the said line of travel, to the same extent and for the same purpose to which the right of the ancient ferry extended. That the plaintiffs, pursuant to their act of incorporation, built the bridge, and opened the same for passengers on the 17th of June, 1786, and have ever since kept the same in good repair, and in all other respects have performed the duties which by the act were to be performed by them, and that the use of the ancient ferry, as the same was before used, has been discontinued. That by another statute of this Commonwealth, of March 9, 1792, for incorporating certain persons to build West Boston bridge, so called, leading from West Boston to Cambridge, (which statute was passed with the consent of the President and Fellows of Harvard College,) it was, among other things, recited, that the bridge of the plaintiffs was a work of hazard and public utility, and that another bridge in the place then proposed for the West Boston bridge (which place was higher up the river, and distant from the plaintiffs’ -bridge about one mile, measuring on the Boston side of the river, and about two miles measuring on the opposite shore) might diminish the emoluments of the plaintiffs’ bridge; therefore, for the encouragement of enterprise, it was, among other things, enacted, that the plaintiffs should continue a corporation as aforesaid for the further term of thirty years, in addition to their original term, making in the whole the term of seventy years, which will expire on the 17th of June, 1856, at which period their bridge should revert to and be surrendered in good repair to the Commonwealth ; in consideration of which additional grant the plaintiffs should also relinquish the additional toll originally authorized to be taken by them on the Lord’s day. That the plaintiffs did accordingly accept the terms offered them in the last mentioned act ; by reason whereof they became entitled to the right of keeping their bridge for the additional term of thirty years, to wit, commencing the 17th of June, 1826, exclusive of the right of any other person or corporation to erect any bridge for accommodating the same travel as above stated. That the last mentioned act went into operation, and immediately thereupon the plaintiffs relinquished the additional toll on the Lord’s day and have ever since forborne taking it ; and have in all other-respects complied with the terms of the two acts above mentioned. By reason of all which the plaintiffs are entitled to have, during the residue of the term of seventy years, the exclusive right of erecting and maintaining their bridge, &c. The plaintiffs also alleged, that the said corporation called ££ The Proprietors of the Warren Bridge ” (under whose pretended authority the individuals named in this bill as combining with them will in any suit at law attempt to justify themselves) have no real or personal property or other funds to respond any damages which the plaintiffs might recover at law for any injury sustained by the erection of the Warren bridge, unless it be from assessments upon the respective pro prietors, which assessments are restricted to the- mere’ ex penses attending the building of the same.
    The bill then proceeds to aver, that the corporation called ■1 The Proprietors of the Warren Bridge,” created by an act of the legislature passed on the 12th of March, 1828, together with certain other persons, to wit, John Skinner (and others named in the bill) and divers other persons to the plaintiffs unknown, combining and confederating together, deny and disregard the exclusive right of the plaintiffs, and openly threaten to erect another bridge over the same navigable river, for the passage of foot passengers and all others, with their cattle and carriages, upon and along the line of travel aforesaid, without payment to the plaintiffs of the tolls granted to them as aforesaid, and have, as the plaintiffs are informed and believe, commenced the building of the bridge, beginning the same at the distance of two hundred and sixty feet from the bridge of the plaintiffs on the Charlestown side of the river and eight hundred tmd fifty-two feet from the end of the plaintiffs’ bridge on the Boston side thereof, and communicating by a highway laid out or intended to be laid out by the defendants from the Charlestown end of the Warren bridge to Charlestown Square, with which square both of the bridges will communicate, at the distance of about 390 feet from the respective terminations of the bridges on the Charlestown side. That all the travel of every kind, direct from Charlestown to. Boston, which shall pass over the Warren bridge, must, as the highways now are mid ever have been established, pass through or from Charlestown Square, and must necessarily, if the Warren bridge were not erected, pass, as it always has heretofore, over the bridge of the plaintiffs, paying the tolls established as aforesaid ; and that the only direct avenue from the Boston terminus of the Warren bridge to the business part of Boston is laid out over land newly made, upon which there is neither any dwellinghouse or warehouse, store or other build ing for business, until this avenue meets one of the great oi common avenues along which the travel over the plaintiffs’ bridge has been accustomed to pass. That the bridge is about to be erected by the Warren Bridge Corporation and John Skinner and others, with the open and avowed purpose and intent of diverting the travel from the bridge of the plaintiffs as afoiesaid ; which will operate to their irreparable loss, det riment and injury, and in derogation of their lawfully vested exclusive rights as aforesaid, and so far as their said rights are concerned will be a nuisance.
    The bill then further avers, that the Proprietors of the Warren Bridge and J. Skinner and others pretend, that they are duly authorized to build a bridge as aforesaid by virtue of a certain act, purporting to be a statute of the Commonwealth, passed on the 12th day of March, 1828, entitled “ An act to establish the Warren Bridge Corporation,” a copy of which is annexed, and which the plaintiffs pray may be taken as a part of their bill of complaint. Whereas the plaintiffs expressly charge, that the alleged statute, as it purports to grant a right to said corporation incompatible with and repugnant to the vested rights of the plaintiffs, did in so far, and in that respect does impair the obligation of the contract aforesaid between the Commonwealth and the plaintiffs by which the said exclusive right was granted to the plaintiffs ; and so being contrary to the constitution of the United States is utterly void, invalid, and of no effect, and the authority supposed to be derived therefrom is wholly void and ineffectual. That the said Proprietors and said J. Sldnner and others do at other times give out and suggest, that on account of the increase of travel, the public necessity or convenience did require that another bridge should be erected, and therefore, notwithstanding the right of the plaintiffs, the legislature at their discretion and for the public accommodation, had a right and were well warranted in passing the act aforesaid, and the authority derived from it to build said other bridge is a good and sufficient authority for that purpose ; whereas the plaintiffs expressly charge, that the constitution of this Commonwealth and the bill of rights thereof do so far restrain legislative powér, that it cannot revoke or annul its own grant, or transfer or divest a legal vested right in individuals, excepting only in those cases where the property of individuals is taken ■ or appropriated for the public use ; and that in such last case such property can only be taken or appropriated by some act which provides a just compensation therefor to the individuals from whom it is so taken ; and further, that if the public necessity or convenience had required the erection of another bridge at the place aforesaid (which they wholly deny), such other bridge being to the detriment, diminution and destruction of the aforesaid rights of the plaintiffs, would have been a taking of private property for public uses, within the true meaning and intent of the constitution of the United States, and an appropriation of the property of individuals to public use, within the true meaning and intent of the constitution of this Commonwealth, which could not be constitutionally done by a statute of the Commonwealth, without providing at the same time a reasonable compensation therefor ; but neither by the supposed act, nor by any other act or proceeding, did the legislature of the Commonwealth provide for any compensation to the plaintiffs for their property so alleged to be taken and appropriated to the public use ; and for this cause also the supposed act is void. And the plaintiffs further allege, that the Proprietors of Warren Bridge and J. Skinner and others do further sometimes give out and pretend, that, although the said Charles River bridge is 42 feet wide, and wider than required by their act of incorporation, yet it is too narrow to accommodate the public travel on said line of travel; at other times, that the raising of the draw for the passage of vessels is an obstruction to the public travel, which might in some measure be relieved by the erection of another bridge nearly parallel thereto ; at other times, that the avenue, to said bridge on the Charlestown side is too narrow for the travel leading thereto ; and at other times, that the proposed bridge would accommodate passengers wishing to go to the westerly part of Boston from Charlestown Square ; whereas the plaintiffs, denying that their bridge is too ■ narrow to accommodate the public travel, and that the erection of another bridge as last aforesaid would relieve the delay and inconvenience arising from the raising of the draw, and that the avenue leading to their bridge on the Charlestown side is inconveniently narrow, and that the erection of a new bridge m the place proposed would accommodate passengers from Charlestown Square to the westerly part of Boston, other than a very few passengers, and them in a very slight degree, do expressly charge, that while the said act was under the consideration of the legislature and before the passing thereof, the plaintiffs did, by memorials.addressed to the Senate and House of Representatives of this Commonwealth, assert and make known their rights aforesaid and did protest against the granting of any authority to erect the new bridge ; and did further expressly offer, at their own expense, if so authorized by the legislature, to make their own bridge sixty or eighty feet wide, and also, in order to relieve the delay and inconvenience occasioned by raising the draw thereof, did offer to construct at their own expense a circular draw thereto, so that travellers should not be delayed or impeded while vessels were actually passing through their bridge ; and also, that they were willing to make the Charlestown avenue to their bridge of any width which the legislature might authorize ; and also, if deemed expedient, to construct a spur-bridge, leading from their bridge to a point at or near the spot where the proposed bridge of the defendants was to terminate on the Boston side ; by means of which the impediments to navigation as well as other inconveniences would be avoided ; — and also, that they would do any other matter or thing, even to the extent of building another bridge, in any way pertaining to the accommodation of the public, &c. And forasmuch as matters of this description are more properly cognizable and relievable in this Court sitting as a court of equity, and in regard that the plaintiffs have no mode of inquiry into, ascertaining and preventing the said nuisance, detriment and injury, threatened and commenced against their said exclusive rights set forth as aforesaid, but by the aid of this Court sitting as a court of equity ; now, to the end that the proprietors of the Warren bridge, and the said John Skin ner and others may true and perfect answer make in the premises, &c. and that they and their agents and servants may forthwith be absolutely enjoined, restrained and prohibited from building or erecting or commencing or proceeding to build or erect the said bridge at the place aforesaid, &c.
    The bill was filed on the 28th of June, 1828, and a subpoena was prayed for which was granted, and on the same day a motion was made for an immediate injunction to stay the further building and finishing of Warren bridge, until a hearing and final decision upon the bill and such answer as should be made thereto by the parties defendant. On this motion notice to the defendants was ordered, and the 5th of August assigned for a hearing ; on which day both parties appeared by their counsel, and were heard on the question, whether the injunc tian moved for should be granted. Certain affidavits and maps were read and exhibited by th.e plaintiffs in proof of the facts set forth in the bill.
    
      Aug 5th.
    
    
      Webster and Shaw, for the plaintiffs.
    The question raised in the present case is one of delicacy and importance, and deserves the deliberate attention of the Court. Respect is due to the legislature of a State ; but it will be admitted by the defendants, that cases do exist where legislatures do wrong and ought to be restrained ; if the laws are to be respected, so is the constitution.
    The Court has jurisdiction in this case, by virtue of Si. 1827, c. 88, giving relief in equity in cases of waste and nuisance; but by Si. 1817, c. 87, “ for giving further remedies in equity,” it would have had power to give relief as upon a contract between the Commonwealth and the plaintiffs ; a bill will lie not only against the original parties to a contract, but also against those who have a derivative authority under them. But if it were doubtful whether the Court could give relief under this latter statute, still the statute of 1827 gives, in terms, the requisite authority. The present is a case of nuisance, technically speaking. Com. Dig. Action on the Case for a Nuisance, A; Steele v. Western Inland Lock Navigation Company, 2 Johns. R. 283; Inhabitants of Arundel v. M'Culloch, 10 Mass. R. 70; Hughes v. Heiser, 1 Binney, 463; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. R. 611; Gardner v. Newburgh, 2 Johns. Ch. R. 164 If it should be said that the present is a case of public nuisance, still, if a special injury is sustained by an individual, he has this remedy. Corning v. Lowerre, 6 Johns. Ch. R 439. In all cases, where a party has an exclusive right to a ferry, market, &c., the erection of another near it is a musanee. Whai, then, are the rights of the plaintiffs ? It is not material to consider how near to their bridge the nuisance is erected, if it affects their rights. Now the act of incorporation shows, to a certain degree, the rights of the plaintiffs , and the evidence in the case shows that Harvard College was in session of the ancient ferry seventy years ago ; but this is also a matter or general notoriety, and is recognised in various ancient laws. In 1636, the year when the college was established, there is a recognition of a grant of the income of this ferry to the college ; and a recital by a grantor is good evidence of a grant, especially against one who claims no title. Ancient Chart. &c. 78. It was again recognised in 1654 ; ibid. p. 80 ; and in 1710 ; Prov. Laws, St. 9 Anne, c. 1 ; and again in the act of incorporation ; St. 1784, c. 53. If it should be admitted, for the purpose of the argument, that the grant originally was temporary or only “ during the pleasure of the country” or government, still, by this last act that u pleasure ” was restricted for forty years at least; and after that term there is a further provision for the rights of the college. Here, then, is a clear case of title ; if there might in strictness be any question as to the extent of the right which the college had in the ferry, yet the public understanding was, that it extended at least as far up the river as West Boston bridge; because when that bridge was granted in 1792, provision was made for an additional indemnity to the college ; and when Canal bridge was built, a part of the college annuity was to be paid by the proprietors of that bridge also.
    It is not necessary, for the purposes of this case, to define the exact extent of our rights ; but we are entitled at least to the exclusive right of transportation between Boston and Charlestown. This is conformable to the adjudication in Tripp v. Frank, 4 T. R. 667, a case which deserves particular attention ; and the same principle is adopted in Ogden 
      v. Gibbens, 4 Johns. Ch. R. 150. On this ground the giant of Canal bridge may be distinguished, as that branch of it which leads to Charlestown was intended to accommodate the travel between Charlestown and Cambridge and not between Charlestown and Boston ; and that branch was too remote from the principal line of the public travel, to do very great injury to the bridge of the plaintiffs.
    Ferries, at common law and in equity, are considered as property; they are necessary to the public accommodation , the owners are compelled to transport passengers at all times ; and to secure this accommodation, a valuable interest is granted to the owners. 2 Dane’s Abr. 681, 682 ; Tripp v. Frank, 4 T. R. 666. A ferry near to another, must, in order to be lawful, accommodate a different line of travel; otherwise it will be a nuisance in law. 3 Black. Com. 218 ; Ogden v. Gibbens, 4 Johns. Ch. R. 150, and particularly 159; Yard v. Ford, 2 Saund. 172, Williams’s note. The place of this ferry is laid down in a map taken by the British officers, so long ago as the year 1775. The law in these cases is well settled; but in the reported cases it is sometimes a question of fact, how far one ferry is a disturbance of another. In the case of fairs, if one is held on the same day and at the same place with another, the law will intend it to be a nuisance ; hut if on a different day, a question may be made. Fitzh. N. B. 184, note, as cited in 2 Saund. 175, note 2. The intent of the legislature in the present case was, to grant the right of travel on this line. Act of Incorp. 1784, c. 53. By sect. 3, a toll is granted to reimburse the money expended by the proprietors. Here are all the ingredients of a contract, made by the public, the plaintiffs and the college. In 1792 West Boston bridge was granted ; and then it might have been made a question whether there was any interference of the two grants ; but it was left to the decision of the legislature. Here was, therefore, a grant of a franchise as a substitute for the ancient ferry, and there was a contract for a certain extent of travel. Then the question arises, whether the act authorizing the new bridge was constitutional; if not, it is so far inoperative.
    There are two grounds of objection to it, — 1. it impairs the obligation of contracts ; and 2. no compensation is given to the plaintiffs for property taken from them and appropriated to public uses. That a grant made by the legislature of a State is a contract, has been judicially settled ; both parties are therefore bound by it; like other contracts, it is, by the legal rule, to be construed most strongly against the grantor; and the intent of the parties is to govern. Did the legislature, then, intend that the rights of the plaintiffs should be limited to the width of their bridge, and that another bridge might the next day be authorized, by the side of it ? The local situation and circumstances repel this construction of the grant. It is not necessary to determine how near one bridge may be made to another ; if the legislature can now grant one at the place in question, they might have done it immediately after the original grant was made. Another rule of law may be here stated, that the grant of any thing carries with it whatever is necessary for the enjoyment of the thing granted. Co. Lit. 56. The object of this grant was the right to take the tolls exclusively for a limited time. We therefore stand on the ground of authority as to the right of the plaintiffs under this grant and the effect of it as a contract, which cannot be impaired by any act of the legislature. Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 104; Terrett v. Taylor, 9 Cranch, 48; Dartmouth College v. Woodward, 4 Wheat. 516; Green v. Biddle, 9 Wheat. 1.
    But if property is thus taken for the public, an indemnity should be made at the same time ; otherwise the act is void. Constit. of Mass. art. 10 of Bill of Rights; U. States Constitut. art. 5 of Amendments. Gardner v. Newburgh, 2 Johns. Ch. R. 160, and authorities there cited, are in accordance with the decisions of our own Court. Perry v. Wilson, 7 Mass. R. 393; Stevens v. Middlesex Canal, 12 Mass. R. 466; Callender v. Marsh, 1 Pick. 418. In England, by ancient statutes, a man’s property could not be taken without his consent. 1 Black. Com. 139. But there, by what is'called the omnipotence of parliament, any thing may be done which an act of parliament authorizes ; if, however, the authority is exceeded, the party becomes a trespasser. Shand v. Henderson, 2 Dow, 519. Even in England the grants of the king may be relieved against ; as in Hall v. Campbell, Cowp 204 ; but in all cases where private - property is taken for public uses, compensation is made in that country. In common cases of grants by the crown, a writ of ad quad damnum issues ; as recognised in a note to the case of Blissett v. Hart, Willes, 508-512, and Ex parte Vennor, 3 Atk. 766. If then the plaintiffs have the right contended for, an injunction is proper. This remedy is peculiarly proper when the defendants, as in the present case, stand in a situation like that of public agents ; and when such agents are about to exceed their authority, the Court will interpose more promptly. Croton Turnpike v. Ryder, 1 Johns. Ch. R. 611; Van Bergen v. Van Bergen, 2 Johns. Ch. R. 272; Belknap v. Belknap, ibid. 463; Newburgh Turnpike v. Miller, 5 Johns. Ch. R. 110; Livingston v. Van Ingen, 9 Johns. R. 507, 569. The ground of granting an injunction is not, that a party has no remedy at all in law, but that he has not a plain, adequate and complete remedy. It is also granted in order to preven a multiplicity of suits, and when it is difficult to obtain evi dence of every instance of damage done which would be neces sary to support an action at law ; as, in cases of copy-right for example, where it would be impossible to ascertain how many copies of a book had been sold. So in the present case it would be impossible to obtain evidence of every instance of passengers who may have travelled over the new bridge. This Court has already, in two cases, granted an injunction for nuisance before the hearing on the merits. Mayor of London v. Bolt, 5 Ves. 129; Universities of Oxford and Cambridge v. Richardson, 6 Ves. 689; Robinson v. Byron, 1 Bro. C. C. 588; Millar v. Taylor, 4 Burr. 2400; Att. Gen v. Richards, 2 Anstruther, 603; Harmer v. Plane, 14 Ves. 130.
    A strong reason for an injunction in the present case is, that the Warren Bridge Corporation is temporary, only of six years’ duration (a much shorter term than remains to the corporation of Charles River bridge), and has no right to malte assessments for any other purpose than to build the bridge. The members of the new corporation are in fact like mere agents of the Commonwealth for executing this work. It ma> be added also, that the reason for having a trial at law in the first instance does not apply in this State, because that trial must be had before this Court also. The following authorities were here cited : Campbell v. Hall, Cowp. 204; Blissett v. Hart, Willes, 518; Com. Dig. Ad. Quod Damnum, A 1; 22 H. 6. 14 b; Ex parte Vennor et al. 3 Atk. 766, the most recent case of ad quod damnum; Shand v. Henderson, 2 Dow. 519; Goldie v. Oswald, ibid. 534.
    It cannot be objected that this application is premature ; it was the duty of the plaintiffs to make it as soon as an injury was threatened, and not to lie by in order to take the defendants by surprise. In Gardner v. Newburgh not a spade had been put into the ground to begin the intended work. Nor will it prejudice the rights of the defendants, for they will still have the right to toll for the same length of time. Suppose twenty years had been allowed, instead of six, for the new bridge ; must the plaintiffs wait that length of time before they could have this question settled ? It is true, that formerly it was'not the practice to grant injunctions in these cases ; but of late it has been otherwise ; and in Jerome v Ross, 7 Johns. Ch. R. 331, the reasoning of Chancellor Kent is fully in support of our application. An injunction is proper as soon as an injury is threatened ; this is the peculiar efficacy of a court of chancery, that we thus arrive as near as possible to perfect justice. We are entitled to this interposition until the right in controversy is tried. It is not our rights, but those of the defendants which are doubtful; our possession makes the difference, we being in by a prior grant; 2 Inst. 406 ; and the defendants do not deny the validity of our grant. • In the case just decided by this Court, Lowell v. Roxbury Chymical and Color Company, the plaintiff had been in possession for 60 years ; but we have been in possession for 160 years. Now it is a settled principle, that we are not to be disturbed by a conflicting title which itself is doubtful. Eden on Injunctions, 284. The title of the defendants is the law establishing their corporation ; and it is said, that they are not wrong-doers, because they have this authority. But this is a petitio principii, for the very question is, whether the law is not unconstitutional, and so gives them no authority at all.
    
      Again; it is said the legislature have the control of all navigable waters, and so could make the present grant. But after having once granted the privilege to the plaintiffs, they could not make another grant of the same thing. Nor can it be said, that the travel has increased beyond the extent of the ferry, which at the time of the original grant employed but one ferry-boat. The plaintiffs had a right to the whole ferry ; and if one boat was not sufficient, the number must be increased from time to time.
    As to the effect of the ancient grant, the college had always received the tolls, and this was evidence of their assent to it; no deed was necessary to perfect their title.
    
      Fletcher and Aylwin, for the defendants.
    The result of the authorities as to injunctions is, that the Court will never grant them unless where the right is clear and incontrovertible; to this there is only one exception, that is, where the mischief would be irreparable. E. India Comp. v. Sandys, 1 Vern. 127; Pawlet v. Ingres, ibid. 308; Whitchurch v. Hide, 2 Atk. 391; Lord Tenham v. Herbert, ibid. 483; Lowther v. Stamper, 3 Atk. 496; Anonymous, ibid. 750; Baines v. Baker, Ambl. 158; Anonymous, ibid. 209; Field v. Jackson, 2 Dickens, 599; Anonymous, 1 Ves. sen. 476; Anon., 2 Ves. sen. 414; Welby v. Duke of Rutland, 2 Bro. Parl. C. 39; Weller v. Smeaton, 1 Cox’s Ch. R. 103. From these cases it appears, that the decisions had been uniform until the time of Lord Eldon; and that the court would not interfere in questions as to the rights of contending parties. Pillsworth v. Hopton, 6 Ves. 51; Smith v. Collyer, 8 Ves. 89. In New York, also, Chancellor Kent, though disposed to go as far as Lord Eldon had in some cases, yet adhered to the general rule. Croton Turnpike Co. v. Ryder, 1 Johns. Ch R. 611; Gardner v. Newburgh, 2 Johns. Ch. R. 162; Van Bergen v Van Bergen, 3 Johns. Ch. R. 287; Ogden v. Kip 6 Johns. Ch. R. 160; Jerome v. Ross, 7 Johns. Ch. R. 332, 336. The text writers are in accordance with these decisions Mitf. Plead. 117 ; Cooper’s Eq. PI. 150.
    In the next place, the plaintiffs do not show a prima facie right; their charter has no terms of exclusion in respect to other grants of bridges on that river ; and no restriction as respects the public, except that they shall have the toll for 40 years ; it is nothing more than a license to build a bridge and take toll till they were reimbursed. The grant was made at their own instance ; and such a grant by the crown, according to the rules of law, is to be construed most beneficially for the crown. 2 Black. Com. 347. This was, moreover, a grant of a bridge over navigable waters ; which, but for this act, would be a nuisance at law. The act of 1792, granting West Boston bridge, was passed only for the purpose of authorizing that work ; the language of the preamble, cited by the plaintiffs, only means that the legislature were willing to encourage enterprize. Nor does it appear that the consent of the plaintiffs was then asked to that act. In the case of Commonwealth v. Charlestown, 1 Pick. 180, the rule of law is recognised, that navigable waters are public property, and it is not to be presumed on light grounds, that the legislature have granted an exclusive right in them ; but if exclusive, then we ask, to what extent; does it extend the whole course of the river ? There was no pledge of the government not to make other grants, as was done in the cases of Henry Knox’s Canal, 1 Spec. Laws, 357 ; and John L. Sullivan’s exclusive right of steam navigation ; and the N. York cases cited in 9 Wheat. 97, note a. The claim of the plaintiffs is in the nature of a monopoly, which is not to be favored. Mass. Bill of Rights, art. 6. But the plaintiffs make a further claim, as assignees (under the college) of the property of the ancient ferry. But if so, why provide an indemnity for them and not for the owners of the ferry in the grant of West Boston bridge. We had supposed it necessary for them to show some assign ment or transfer; otherwise no rights passed. Besides, the income only, and not the ferry, was granted. Winthrop’s Journal, by Savage, vol. 2. p. 88. But the plaintiffs rely on the acquiescence of the college, and say that the ferry became extinct ; that there had been a non-user for 40 years. Can the plaintiffs, under the right to have a ferry, prescribe for a bridge ? The legislature might have made them succeed to the rights in the ferry ; but neither in the act of 1785 nor 1792, is there any transfer, or any surceasing of the ferry. This is an incorporeal hereditament and passes by grant alone ; and if a freehold, as contended, then a deed is necessary We say further, that the plaintiffs, by their own showing, set out a title in the defendants from the same source with their own, a grant from the legislature. Here then are conflicting rights, and this Court will not interfere in such a case, unon a preliminary motion, before those rights are settled by a trial at law. The principles which govern this case, are to be found in the case of Callender v. Marsh; the present is a case where there may be a consequential injury without redress. The plaintiffs have stated themselves out of court, according to the law recognised in Smith v. Collyer, 8 Ves. 89; Storm v. Mann, 4 Johns. Ch. R. 21. But we further say, that no nuisance as yet exists ; the proposed bridge is not erected and no travel is. yet diverted from the plaintiffs’ bridge. The Court will not interfere in such cases. 1 Fowl. Eq. Pract. 157. Besides, the general doctrine is not contested as to unlicensed ferries; but the plaintiffs may be challenged to show any cases where it was applied to ferries which were established by authority. It is said by the plaintiffs, that the Warren Bridge Corporation has no funds, and that the plaintiffs could have no benefit by resorting to a remedy at law. But there are the materials of the bridge and the tolls. This, however, is no reason for interfering in the case. The recent statute is of a limited character, and does not give the authority required for the plaintiffs’ case. We contend, that the plaintiffs have a plain remedy at law, by an action on the case ; that the grievance in this case does not come within the definition of a nuisance ; that the late statute uses the term in a popular sense, intending those nuisances which affect life or health ; and the legislature did not intend to have conflicting rights tried in this manner. Courts of equity have not been favorite tribunals with us, and the late State convention refused to establish an equity court by a constitutional provision. The Bill of Rights gives a trial by jury ; but this act leaves it at the discretion of the court to gran-such a trial or not. The cases cited by us show a course of adjudications in equity from the time of Lord Somers to Lord Mansfield, that in cases where the right is doubtful, tile court will not interpose by an injunction until there has been a trial at law.
    Tins act is also in conformity with the practice of the legislature ; as in the cases of West Boston Bridge, Canal Bridge, and the Western Avenue Turnpike. The public convenience and necessity are to be inferred, or the act would not have been passed.
    In the cases cited, where injunctions have been granted, the parties were trespassers ; but here we have authority from the legislature. In the New York cases, the parties actually used the plaintiffs’ turnpike except just by the gates, which they avoided.
    We may add, generally, that the chancery jurisdiction has never been a favorite one with the people of this State ; and the equity powei i of this Court are not to be extended. In England also, this controlling power of chancery has been much complained of. Park’s Hist. C. of Chanc. 260. [Parker C. J. As matter of history, it will be recollected, that this province passed two laws establishing a chancery jurisdiction, but they were both rejected by the Crown.] In the present case, especially, it is not to be extended, in order to favor a grant which gives a monopoly.
    
      
      
         To make the case intelligible to persons not acquainted with the local situation of the bridges over Charles river, it may be proper to state, that Canal bridge is above the Warren bridge and below the West Boston bridge.
      The main Canal bridge leads from Boston to Cambridge, but near the middle of it is a branch leading to Charlestown, so that persons may pass either oetween Charlestown and Boston or between Charlestown and Cambridge Reporter
      
    
   A few days after the hearing, the following opinion of the Court was drawn up by

Parker C. J.

Both parties, by their counsel, have been fully heard upon the question, whether the injunction moved for should be granted; and after sufficient deliberation the Court are unanimously of opinion that the motion cannot be granted, for the reasons which will be stated.

We wish it to be understood in the outset, that the decision on this motion is wholly independent of any opinion upon the mom question hereafter to be tried, whether the act of the legislature incorporating the Proprietors of Warren bridge is valid against the Proprietors of Charles River bridge, so as to justify the diminution of their income by withdrawing travellers and passengers from the latter bridge. No such opinion has been formed, and we have purposely excluded that question from our discussion upon this motion, any further than to satisfy ourselves that there was ground of controversy. And we think it will be unsafe for either party to found any hope or expectation of the final result of this hill upon the failure of the present motion, for it will be seen in the course of these remarks, that there was no occasion to go into the general merits of the case, in order to discharge our present duty, and we have not therefore thought ourselves authorized, in the ac tuai state of the proceedings, when only one party is formally before the Court (the time for answer not having arrived), to decide or even to deliberate upon a question on all hands deemed to be of magnitude and importance.

That question is of a nature not to be sought for by any one holding a judicial seat, but not to be avoided when duly and legally presented. When it assumes a shape which involves the rights and interests of corporations or individuals, it will be met with due deference to legislative authority and due regard to the constitutional rights of the citizen. We should have been glad, upon the whole, if the proceedings had been so matured that we could with propriety have passed upon the great question which is brought up by the controversy, because suspense on such occasions cannot but he injurious ; but the forms of law and the rights of parties require time and preparation, and whatever may be lost by delay in particular cases, is amply compensated by the security and stability resulting from cautious and formal deliberation.

The act of the legislature under which this bill is filed, and which gives us authority to sustain the present motion, was passed but a few months since. Until then there was no jurisdiction over waste and nuisance, except by action or indictment at the common law, or process under tire statute of 1801, c. 16. These admitted of no preventive measures, but left the subject of the complaint as it was found, until a final adjudication. The legislature without doubt saw, that in many cases public safety and private security required more prompt and efficacious relief tiran could be had in the customary mode of redress. Nuisances may affect the life, health or comfort of the citizens of a neighbourhood; the mischief threatened may be accomplished while a prosecution is pending. Regard to these great objects seems to require that there should be a power to restrain as soon at least as the mischief commences ; and in regard to nuisances strictly private, — such as the unlawful interference with a pre-existing right, the interruption of light and air, the diverting or corrupting of water, the subduction of profits from a market, mill or ferry, — that where the right to the enjoyment is clear and uncontroverted, and effectual relief or compensation is doubtful, the mischief shall be stopped or even prevented by the power of the public. And this may be beneficial as well to the agent as to the sufferer, for it may protect him from an expense, which a subsequent adjudication may render wholly useless. Attributing, as we ought, a wise regard by the legislature, in their public and general laws, to the wants and well being of the community, we must suppose that it was a sense of the imperfect state of the law in the above particulars, which led to the adoption of the act in question, and if wisely administered by the judicial power, it will without doubt be found salutary.

The motion however which we are considering has been me' by a denial of the application of the statute to such a case as is presented by the bill. In other words, it is alleged that the Court, in its chancery character, has no jurisdiction over the subject, because the legislature intended to bring within the law only nuisances of a different description, those which more usually come under the denomination of common nuisances, although they may be particularly injurious to individuals.

This Court has no desire to extend its jurisdiction in equity beyond the clear and undoubted meaning of the legislature in conferring it. Hitherto we have taken none by implication. In the first case which was decided under the statute of 1817 (17 Mass. R. 327) the reasons were given for construing the grant of jurisdiction in equity to this court of common law, strictly, and the same reasons still exist. We consider each act of the legislature which has successively granted that power, as specific in its nature, and that the powers are not to be extended to cases or subjects not expressly designated, because we are bound to suppose that it was intended to limit the new jurisdiction to such cases only as had been determined to require its application.

It is to be observed, however, that this jurisdiction, though limited and restrained in regard to the objects, is wholly unlimited in regard to the means of executing it, for in all the various statutes which have been enacted, plenary power is given to execute orders and decrees by all such writs and processes as may be necessary to attain the end, so that in regard to the mode of proceeding and the execution of the authority vested in any given case, the Court is restrained by nothing but by paramount law, the constitution, and is necessarily referred to the rules and forms of proceedings in other courts of equity for its guide. When the legislature give jurisdiction over any particular subject in equity, they cannot but have in view a system of equity well known in the history of jurisprudence, and known to be a branch of legal science ; for otherwise (which cannot be presumed) they must have intended to refer such subjects to the will of each particular judge who should be authorized to enforce the authority ; and therefore it becomes the duty of the Court to consult the precedents of courts of chancery of England and our sister States, as in a common law proceeding we recur to a similar source of authority or information. When the jurisdiction is doubtful, therefore, we must look to books to see whether it has been exercised by other similar tribunals, and when the subject matter of the pow er is expressed in technical words, we must ascertain the use and meaning of the terms by a similar reference.

It so happens, however, that hitherto nothing has been left to doubt and conjecture as to the subjects over which jurisdiction is intended to be conlerred. The statute under consideration is not less explicit than those which preceded it, leaving no room, we think, to doubt of the real intent of the legislature “ The justices of the Supreme Judicial Court may hear and determine in equity any matter touching waste or nuisance in which there is not a plain, adequate and complete remedy at law.”

In considering then whether any particular subject of a bill 's within the jurisdiction of the Court in this form, we have only to inquire whether it is a matter touching waste oi nuisance, and then whether there is such remedy at law as falls within the restriction. Now what is or is not a nuisance is very clearly stated by the books of the common law, and among other things it is clear, that to establish without right a ferry sc near to one before rightfully existing as to draw away the passengers and diminish the profits, is a nuisance. So in regard tc markets or fairs, where they may be private property So m some cases in regard to a mill, or the obstructing oi diverting of a water-course, and many other subjects of a similar nature. Com. Dig. Action on the Case for Nuisance, A. There can, we think, be no doubt, that though bridges are not particularly named, because in ancient times when the law was settled there were none probably existing with a right to toll that were liable to interference by unauthorized persons, yet where they do exist by lawful authority, and their profits are reduced by unlawful competition, they fall within the reason of the law, and are equally protected by it as ferries, markets, &c. Therefore taking the complaint in the bill as true, which we must do on the question of jurisdiction, we entertain no doubt, that the facts alleged are “ matters touching nuisance,” which come expressly within the terms of the statute.

But it is objected that by the restrictive clause in the statute, “in which there is not a plain, adequate and complete remedy at law,” the case stated in the bill is excluded from the equity jurisdiction of the Court; if so, it must be because there is such a remedy for the grievance complained of.

The object of the legislature in using these words is, to preserve the jurisdiction of the common law in all cases where that is capable of affording substantial and adequate relief. It is plain that it is not intended to confine the cases for equity to that class only in which there is no relief at law, for by such construction the statute would be nugatory, there being no cases of an actual wrong for which some remedy at common law cannot be found. “ Wherever there is a wrong there must be a remedy,” is a maxim of the common law, and when there is no writ in the register, one will be framed to suit the case. But there are many cases in which the remedy may be defective ; that is, not adequate and complete

The common law furnishes a remedy for the breach of a contract, but that is not always complete; for the strict execution of the contract may be more desirable than a compensation in money for the breach ; and the party is entitled, upon principles of right and equity, to have the thing done which is contracted to be done ; and it is the highest eulogy of a court of equity, that it can compel a performance of promises on contracts, instead of leaving the injured party to an uncertain recompense in money. So a man contracts to abstain from doing something, and the court of equity, instead of allowing him to do it and pay for his voluntary breach of faith, lays its hand on him and compels him to abstain.

These are cases where the common law furnishes a reme dy, but it is incomplete, and equity steps in to supply the defect. In short, the limitation in the statute shows an in tention to give the jurisdiction as it exists in chancery in England, for there it is only where there is no remedy at law, or only an insufficient one, that the chancery powers are in force.

Now in regard to nuisances of a private nature, though there is an action on the case for damages, it is plain that this remedy is inadequate and incomplete. The party may recover his damages, but the nuisance continues ; he may repeat his action, but still he does not remove the mischief. The offending party may be obstinate or malicious, or he may take his chance of being obliged to pay less than he can gain by the nuisance. A power to restrain him, by means which he cannot resist, would seem to be essential to the due administration of justice. And such a power is equally salutary, where one having a clear right to the use and income of property, is intercepted in the enjoyment of it by one usurping upon his rights.

To apply the principle to the case stated in the bill, taking again the facts as alleged to be true. The complainants are m the actual enjoyment of a franchise granted by the Commonwealth, yielding them a profit, for which they paid a valuable consideration, and entered into some obligations which are yet m force. The respondents, without authority, erect a bridge so near to theirs as to make it certain that their income will be reduced. An action will lie for this injury, and damages may be recovered, and so toties quoties as the injury is renewed or continued. But the injury remains, the damages are uncertain, and the ability to pay is doubtful. Without doubt this is such a case as the legislature contemplated, for the remedy is Incomplete. Nothing short of an absolute prevention of the evil is a complete remedy, and a court of common law is incompetent to afford this.

But it is objected, that by this extensive construction of the statute, the parties will be deprived of their right to a trial by a juiy, which is secured to them by the 15th article of the declaration of rights. If this be the effect, the act itself is void, for the legislature cannot ordain a process by which controversies respecting property shall be ultimately decided without a trial by jury. We think however the act is not exposed to this objection, for it provides, “ that whenever it shall be necessary and proper to have any facts tried by a jury, it shall be done in such manner as the Court shall direct.” Now whenever a party in a suit in equity shall require that any controverted fact be tried by a jury, the Court, by force of the article above mentioned, (though the act is not imperative,) will be obliged to order an issue for that purpose, and thus the constitutional security is preserved. So in regard to all the preceding statutes giving jurisdiction in equity, some of which do not provide for a trial by jury, this constitutional provision must be enforced by the Court.

With respect to public nuisances, which are misdemeanors, there may be more question as to the application of this statute. Certainly if proceeded against criminally, in order to obtain an abatement and the punishment of the offender, it must be done by indictment, or in some cases by information at common law, or in the manner provided in the statute before cited. But even in regard to some of these, those for instance which affect the health or comfort of a neighbourhood, since each individual is particularly annoyed, perhaps the remedy by this statute, at least so far as to procure immediate relief by injunction, is proper. But of this we give no opinion, the case before us being one of a private nuisance only.

We are satisfied, for the reasons above stated, that the Court has jurisdiction of the subject matter of the bill, and we proceed to inquire whether the present motion shall be granted. The motion is for an immediate injunction to restrain the respondents from building or continuing to build the bridge which is the subject of complaint in the bill. Indeed it is part of the prayer of the bill itself, that an injunction immediately issue, before answers filed or any hearing of the merits of the complaint, except those which are stated in the bill itself, supported by affidavits which sufficiently prove the principal facts.

To us, who have been used only to common law proceedings, it could not but appear a novel application, to award process in nature of an execution against a party who had been only summoned to hear a complaint against him, but whose time of appearance had not yet come. It seemed to resemble a little the course ascribed to the judge renowned in classic poetry, Castigat auditque. But upon examining chancery decisions in England and New York, we are satisfied that there are cases which require the exercise of the power of preventing, as well as compensating mischief; and confining the exercise of this power to cases like those to which it has generally been applied, it is a wholesome if not an essential branch of equity jurisdiction. The power existing in fact in those jurisdictions which have been mentioned, at the time when our statute was enacted, there can be no doubt it was intended to be conferred on this Court by that statute. Probably if it had not been expressly granted, it would have been thought necessarily to result from the jurisdiction given, “ of any matter touching waste or nuisance,” and the power to issue all writs and processes necessary to enforce that jurisdiction ; for we must of necessity have resorted to the decisions of other courts to know what was intended by the terms made use of. But to put the matter out of all question, the legislature have in tho ¡ame statute enacted, “ that any one or more of the justices of this Court in term time, or in vacation, may issue writs of injunction to stay any waste or nuisance, and make such orders and decrees relative thereto, and issue such processes proper to enforce the same, as justice and equity may require.”

The power therefore to issue writs of injunction for the above purpose is limited only by the judicial discretion of the court or judge, which discretion is to be enlightened and guided by the practical exercise of it by the eminent tribunals in which equity jurisprudence has been administered. Upon consulting the recorded doings and opinions of those tribunals, we find that this power of prejudging a case, so far as to prevent the continuance of an alleged mischief until the party complained of has an opportunity to answer, is but sparingly exercised, and only upon cases which hardly admit of controversy. Upon the first application to Lord Hardwicke he was startled, and said it was wholly unprecedented, and almost indignantly dismissed the motion. 2 Ves. sen. 414. But since that period injunctions have frequently been applied for, and sometimes obtained, before any trial at law or hearing of the merits, and in most, if not all of the cases wherein they have been granted, substantial justice and the security of the party aggrieved seemed to require the interposition of this saving power.

The principle on which the English courts of chancery have proceeded in the use of this extraordinary power, is urgent necessity ; to prevent the destruction of property, or such invasion of rights as will hardly admit of a full and fair recompense, if it is suffered to proceed until there can be a judicial determination of the case.

And they further require, to support such an application, that the subject matter of the complaint, that is, the property njured or menaced, or the right invaded, should be free from controversy ; for if there be a controversy, they uniformly refuse to interfere in this summary mode. Such a preliminary injunction has scarcely ever issued unaccompanied by a declaration of the extreme reluctance with which it is granted; and well it may be so, for it is to a certain extent deciding the cause upon a hearing of one party only ; which is so contrary to the' common principles of justice, that nothing but extreme necessity will justify it. Chancellor Kent, in one of his decisions, says, “ it must be a strong and mischievous case of pressing necessity, or the right must have been previously established at law, that will entitle the party to this relief.” 3 Johns. Ch. R. 287. And in another, “ that the process of injunction is too peremptory and powerful in its effects to be used without the clearest sanction, and that he should better consult the stability and the utility of the powers of the court of chancery, by not stretching them beyond the limitation prescribed by the precedents.”

Coming to the exercise of this jurisdiction, hesitatingly and sparingly conferred by the legislature, so recently as we have done, and accustomed as we have been to the restraints of the common law, it cannot be -expected that we shall be more ready to extend power by construction, than those who have been long familiar with this useful though somewhat indefinable branch of jurisprudence. Our statute, it is true, gives general power to issue writs of injunction to stay waste and nuisance, but the very generality of the terms implies a limitation by some known course of proceedings in similar tribunals. Many cases have been cited in the argument, but the result of them all seems to be, as expressed in the words of Eden, “ that though the court is in general averse to interfering before a trial, yet if a case of nuisance is clearly made out upon affidavit, it will nevertheless be granted or continued until such trial shall have been had.” Eden on Injunctions, 237.

And this rule has been adopted in several cases which have occurred since the enactment of our statute. An actual nuisance has been proved to exist, and it was manifest that the continuance of it until a trial could take place, would expose the health if not the lives, and certainly destroy the comfort of a neighbourhood. Such cases were, without any doubt, "ontemplated by the legislature as proper subiects of this restraining power, and all will admit, in regard to these, that this act of the legislature was called for by a due regard to the health, comfort and convenience of the citizens.

And it seems to follow as a just and necessary inference from this rule, that in certain cases where the nuisance does not yet exist, but preparations are made to create it, and if suffered to be completed it will produce great and irreparable mischief, a preventive power should be exercised, and ihe party kept from advancing until his right shall be established to do what he has undertaken. On this branch of the power there has been doubt, and the existence of it has been denied in argument ; but considering its salutary nature, and that it has been exercised in England for a long series of years, and in the chancery court of New York, we think it was within the intent of the legislature, that the power of this Court in regard to injunctions should be no otherwise restrained than by sound legal discretion in the judge who may be called to administer it.

It is seen then, that by the construction given to this act of the legislature, the present application for an immediate injunction is to be determined in some measure by our opinion of the necessity which exists for it in this particular case. The case to be made out is, that from the facts stated in the bill, it is manifest and clear that the completion of the undertaking will necessarily and unavoidably create a nuisance to the plaintiffs, that is, that it is clear that they have a right by virtue of their charter, or of their derivative right to the ferry from Harvard College, to the exclusive privilege of transporting passengers between Charlestown and Boston over their bridge, or such one as they may construct, or at least that they have the exclusive right to the transportation of those who may pass over the new bridge, if that shall be erected. Now if this be true as stated, it is a proper case for immediate restraint, upon the principles above recognised; but the exclusive right, which is the turning point of the case, is denied by the respondents. They say that there is no express grant of exclusive right in the charter, and that such right is not to be inferred as an implied covenant, but that all that was granted was a license to build a bridge across Charles river at the ferry ways, and that any succeeding legislature, acting with a view to public convenience or necessity, had the same right to grant another bridge as the legislature of 1785 had to grant the first. They' therefore claim a right to do what they are complained of for doing, and what the Court is called on to restrain, under legislative authority ; which indeed is set forth in the plaintiffs’ bill.

Now can we say it is clear and incontrovertible, that the act under which the respondents are proceeding is unconstitutional and void, because it impairs the contract supposed to be contained in the former act ? We may come to this conclusion after a full hearing and due deliberation, and if we shall, our duty will be clear and the disposition to do it unshackled ; for no one can doubt that the constitution is above any legislative act.

Again, it is said the right of the plaintiffs is clear, because the place where they have built their bridge is the site of an ancient ferry, formerly belonging to Harvard College by grant from the government, and transferred by the college to them. But on the other side it is said, that there is no transfer of such right; that the provision in their charter for the annual payment of =6200 to Harvard College, amounts only to a • compensation provided by the legislature for the temporary loss of the ferry, by means of the bridge they had authorized; and that this, though consented to, and receiv ed by the college, transferred no right, but was only a satis faction for damages. Can we say that this is so clear and incontrovertible as to authorize us to proceed in this summary and ex parte manner ? We think there may be a question on both points, and therefore, within the decided cases, we ought to refuse the motion so far as it depends upon these grounds.

Again, it is said, that by their charter there is secured to them the enjoyment of toll from all passengers who would cross their bridge, if the new one should not be erected; and that admitting the legislature have the power to authorize another bridge if the public necessity and convenience should require it, yet as thereby their property will be af ected and impaired, there was no authority in the legislature thus to interfere without providing an indemnity for their loss. The principle is clear and incontrovertible ; it is founded on an express provision in the declaration of rights, and would be required by the everlasting principles of justice, and of the social compact, even if it had not been expressly sanctioned. But is it as clear and incontrovertible, that the case of the plaintiffs comes within the principle ?

This depends on the former question, what was the grant, what was the contract; was it of an exclusive privilege to any extent, which is invaded by the new act ? If so, the act is invalid, for it provides no indemnity. If not so, there is no case for the application of the principle. The plaintiffs certainly make out a very strong case of exclusive right, by implication ; but it is contended on the other side, as before, that no exclusive property was granted ; that the public. necessity required a new bridge ; that the legislature alone could judge of this necessity; and that they have determined the question. Now here is certainly a case of very serious controversy ; and although we may hereafter, if it should become our duty, decide that this was a proper case for indemnity, we think it does not become us, on a question discretionary in its nature, to decide so promptly against a deliberate act of the legislature, as we must do by granting this motion. It is enough for us to see, that there is room for argument, to authorize, and indeed to require us, to withhold the process prayed for. And in thus deciding, we do not certainly go counter to the decision of the courts of chancery in England or New York.

It is said that whenever a person is in the enjoyment of any purchase or privilege under a legislative or government grant, being in actual possession, the practice is to grant an immediate injunction against any who shall disturb or threaten to disturb him. We do not refuse to acknowledge this to be a correct rule; and the cases cited to support it sufficiently show the extent and application of it. They are most generally cases of patent and copy rights ; and in those, the right in the party seeking relief is considered quasi of record, and the extent of the right invaded is clearly defined ; and besides, the mischief of suspense would be irremediable to a considerable degree. But even in such cases, a long possession and exercise of the right under the patent or law is required to be shown. 3 Meriv. 622, 624, 628 ; 4 Ves. 130.

Is the case before us so like these cases as to require the same adjudication ? Of what are the plaintiffs in possession P of an exclusive right to take toll from all persons who pass-Charles river, between Charlestown and Boston ? or of the right to take toll only of those persons who shall actually pass their bridge ? Now the solution of this question depends upon the determination of the first, what is their grant, their contract, what rights did it confer ? To say that they were in the actual possession of the franchise of toll from all travellers who should go through Charlestown to Boston, is pelitio principii, an assumption of the very thing in controversy.

Upon the whole then we are satisfied, that, this is not one of those clear and uncontroverted cases of nuisance which form a class for the operation of the summary process sought for.

The case cited in the argument which comes nearest to this, is that of Gardner v. Newburgh, 2 Johns. Ch. R. 162. There the injunction was against persons acting under a legislative act, because they were about taking away a valuable privilege from the complainant for a purpose of a public nature, the act making no provision for indemnity. The private property was clear and uncontroverted, and it was equally clear that the legislative act was void against the complainant. This was decidedly a proper case for the exercise of this power. In the case before us, the very property said to je threatened, is denied. The bill itself shows it is denied. We cannot prejudge the question.

¡So in the case cited, where an injunction was granted against commissioners who had exceeded their authority. The common principle is, that where officers of the government have authority to take or meddle with the property of a subject or citizen in a special manner or to a limited extent, in whatever they may do in any other manner or to a greater extent they are not protected, and they may be treated as trespassers. But the case before us is, where the respondents act within the authority granted, and the question, which certainly must always be a serious one, is whether that authority is void.

There is however another class of cases in which injunctions are sometimes granted without trial, though the fact of nuisance or injury may not be uncontroverted ; and that is when the delay or allowing the-mischief complained of to continue, will produce destruction of the property, without any sure means of compensation for the loss. As in some cases of waste ; some of repeated and continued trespasses ; some interruptions of enjoyment or of property, where compensation in money will be inadequate, or uncertain on account of the inability of the party to pay. And this has been supposed to be such a case, because, it is said, if this bridge should be finished and open for travel, it is so situated that a portion, probably a large portion, of the income of the complainants will be withdrawn, and their remedy at law will be inconvenient on account of the multiplicity of suits which will be necessary, and the limited responsibility of the respondents as a company. This we think, under the circumstances of the case, might be good ground for the interposition prayed for, if the apprehensions of the complainants were well founded. But we think the danger does not exist, and that if the case should be finally made out, the remédy will be perfect and complete. In the first place, if the act under which the respondents are erecting the bridge is void, it is a nullity, and the individuals composing the company will all be liable, to the extent of their property, in suits at common law. -But such suits will not be necessary, except for so much toll as may be lost between the opening of the bridge and the final adjudication ; for this injunction, as Chancellor Kent says, is a prompt and powerful engine, and is accompanied with penalties which may be increased until the object is accomplished ; and in addition to this, there is no doubt that a forcible abatement by the power of the Commonwealth will be awarded by this Court under this bill, if the bridge shall be found to be a nuisance ; there is then no necessity for anticipating measures. Festina lente is never more proper than in judicial questions on conti averted rights.

We conclude as we began, by a caution to the parties, and to others interested in the question, to all who may wish to speculate on the result, or whose projects and schemes are connected with the maintenance or overthrow of the bridge, that we consider the question of the validity of the grant or charter of the new bridge as open and undecided as it was before this motion was made.

Such things as were proper for us to decide, we have decided. We have given the construction of the statute. We have determined that we have jurisdiction of this case. On these points the case can never be argued better than it has been, and therefore we decide. On the great question we have purposely kept our minds free, because the time has not come to hear or decide.

If the complainants think this hard, we say, as did Lord Hardwicke when he dismissed a similar motion — “In a plain case of waste or nuisance an injunction may be granted before answer, because the court will not suffer it to go on to prejudice the party in the mean time, but will stop it before hand ; but now you come in a very special and particular case. As you have given them notice by filing your bill, and stronger notice by this motion, if they do wrong it is at their own peril, and it might be ground for the court to order their building to be pulled down.” 
      
      
        Wilde J was present in consultation, but not at the hearing.
     
      
       See Revised Stat. c. 106, § 6 ; Charles River Bridge v. Warren Bridge, 7 Pick. 367 et seq.
      
     
      
       See Revised Stat. c. 81, § 8; Bemis v. Upham, 13 Pick. 169
     
      
       See Revised Stat. c. 106, § 7, 8, 9.
     
      
       See Comins v. Bradbury, 1 Fairfield, 447, 2 Kent’s Comm. (3d ed.) 339; Enfield Toll Bridge Co. v. Connecticut River Co. 7 Connect. R. 49; Case v Thompson, 6 Wendell, 637; Baker v. Boston, 12 Pick. 184; Boston and Roxbury Mill Corp. v. Gardner, 2 Pick. (2nd ed.) 39, note 2; Charles River Bridge v. Warren Bridge, 7 Pick. 519 et seq., 471; Wellington et al. Petitioners, 16 Pick. 87.
     
      
       See 2 Story’s Comm. Eq. 204 et seq.; Gibson v. Tilton, 1 Bland, 355.
     
      
       See Charles River Bridge v. Warren Bridge, 7 Pick. 344; Enfield Toll Bridge Co. v. Connect. River Co. 7 Connect. R. 28; Piscataqua Bridge v N. H. Bridge, 7 N. Hampsh. R. 57
     