
    *The James River and Kanawha Company v. Anderson & Others.
    April, 1841,
    Richmond.
    (Absent Stanaiid, J.)
    James River and Kanawha Company — Right to Occupy Streets — Construction of Charter. — upon the construction of the charter of the ,J. It. and K. company, passed March 1832, Supp. to U. C. eh. 377, § 20, 34, 35. IliflLD,
    !. That the company has aright to enter upon and occupy the public streets of a town, as well and in like manner as the lands of individuals, when it shall deem the same necessary for its canal or other works, liable to make compensation in damages to any party injured.
    2. Same — Same—Same—Previous Ascertainment of Damages. — That the company may lawlully enter and occupy such streets for its works, and proceed with its works, before instituting proceedings to ascertain the damages that may result to others.
    3. Same — Injunction to Proceedings of — When Proper. — That it is not competent to a court of chancery to award an injunction to stay the proceedings of the company in the prosecution of its works of any kind, unless it be manifest, both that it is transcending the authority given by its charter, and that the interposition of the court is necessary to preventinjury that cannot be adequately compensated in damages. The two circumstances must concur, to warrant a court in awarding such process.
    Same — Right to Occupy Streets of Richmond for Basin. —It seems, that the company would have the same right to occupy the streets of the city of Richmond for its basin, as it has to occupy such streets for its canal, liable to compensate any party injured in damages, but not liable to be restrained by injunction ;
    Same — Same—Power of City Authorities. — And that the city authorities have a right to sanction such use of the streets by the company.
    The first James River Company was incorporated by an act of assembly passed at the October session 1784; which, reciting ‘'that the clearing and extending the navigation of James River, from tide water upwards to the highest parts practicable on the main branch thereof, would be a work of great public utility,” and that “it might be necessary to cut canals, and to erect locks *’or other works on the sides of the river,” incorporated a company by the name of The James River Company, giving it full powers to accomplish such improvement of the navigation, authorizing it to receive compensation by way of tolls on boats &c. for the work, and making it the condition on which it should be entitled to demand and receive tolls, that it “should make the river well capable of being navigated in dry seasons by vessels drawing one foot water at least, from the highest place practicable to the Great Rails beginning at Westham” — “and should, at or near the said falls, make such cut or cuts, canal or canals, with sufficient locks, if necessary, each eighty feet in length and sixteen in breadth, as would open a navigation to tide water, in all places at least twenty-five feet wide (except at such locks), and capable of conveying vessels or rafts, drawing four feet water at least, into tide water, — or should render such part of the river navigable in the natural course.” The company was authorized to agree with the owners of any land, through which the said canal was intended to pass, for the purchase thereof; and, in case of disagreement,to sue out writs of ad quod damnum, for the purpose of having the value of the lands necessary for its work assessed by a jury, and the lands condemned for its use, so that the same should not exceed in any case the width of one hundred and fifty feet. And it was provided, that the river, and the works to be erected thereon, in virtue of the act, when completed, should forever afterwards be deemed and taken to be navigable as a public highway, free for the transportation of all goods, commodities or produce whatsoever, on payment of the tolls imposed by the act: and that the. canal and works of the company, and the profits thereof, should be vested in the stockholders, their heirs and assigns, as tenants in common, exempt from taxes, &c. Acts of October session 1784, ch. 19, l 1, 2, 11, 17; 11 Hen. Stat. at targe, p. 4S0, 457, 461.
    *Under this charter, The James River Company cleared away obstructions in the bed of the river, from the highest point from which it deemed the navigation practicable, to the commencement of the Great Falls at Westham (about five and a half miles above the city of Richmond), and from Westham, cut a canal on the north side of the river (with locks, to let boats up and down, of the dimensions required by the charter) opening into a basin made in the city of Richmond. The canal crossed diagonally six lots, intersected the streets designated in the plan of the city as B and C streets, 6th and 7th streets, and opened into the basin at the intersection of C and 7th streets. The basin was formed between 7th street on the westward and 12th street on the eastward, and between D street on'the northward and C street on the southward, by a high artificial embankment on the northern and eastern sides, and on the southern, by the natural banks of a ravine. The basin covered six entire lots of the city and parts of several others; it covered also parts of 8th, 9th, 10th, and 11th streets, and (which was the principal subject of this controversy) a part of C street. For the ravine crossed C street in two places; and its banks, widening and diverging to the eastward and westward from the points of its intersections with that street, were included in that part of the street which fronted the basin, namely, along nearly the whole length of the basin. And so deep was the ravine, and so irregular the proclivity of its banks facing to the northward, that, in the natural state the ground, the northern line of C street descended at some points to a depth of forty-five feet or more, and upon an average to a depth of sixteen feet, below the general level of the southern line. Thus, the waters of the basin filled the ravine at the two places where it crossed C street, and, in other parts, overflowed the northern margin of the street, more or less according to the natural curve of the banks; and, according to the *natural varying proclivity of them, the water, along that line, was at some places quite deep, and at others very shallow. C street was sixty-five feet wide; and the average width of those parts of it (lying above and below the points where the ravine crossed it) which were covered by the waters of the basin, was twenty-five feet, and the average width left uncovered forty feet. The street, where it bordered on the basin, in its natural state, was very broken ground, and impassable for carriages of any kind; and it remained wholly unimproved at the time the basin was formed; though it had been somewhat improved when this controversy commenced, partly (it seemed) by the city, and partly by the James River Company.
    
    The lots and parts - of lots covered by the waters of the canal and basin, or the right to make such use of them, and the lots on which the northern and eastern embankments to contain the basin were formed, had, it seemed, been acquired by the James River Company, by agreements with or purchase from the owners thereof, or by condemnation under writs of ad quod damnum: but as to the parts of the streets of the city which were ^overflowed, there was neither any agreement with the city authorities or with the owners of lots on the streets, nor any condemnation of them for the use of the company. Probably, the benefit of the work to the public, and especially to the city, was so great and so obvious, that its interference with the streets above mentioned (which were then, indeed, hardly used) was not thought of, or was disregarded. The canal and basin were completed about the year 1795, and thenceforth, till the commencement of this controversy, the James River Company, and its successor companies, exercised absolute control over its canal and basin, subject to the public right to use them as a highway, without interruption, question or complaint, from any quarter, and enjoyed the whole profits of the work.
    The commonwealth was a principal stockholder of the company, owning indeed a very large portion of its capital stock. The profits were large. In February *1820, the legislature passed an act, making great alterations in the charter of the company, upon condition that it should assent to the same. The purpose was to provide for a very extensive improvement, in addition to that which the company had already accomplished ; the improvement, namely, of the navigation of James River as high as the mouth of Dunlap’s Creek (many miles beyond the Blue Ridge of mountains) ; the making of a convenient road from thence to the great falls of the Kanawha; and the making of the Kanawha navigable, from the great falls thereof to the Ohio. In making this additional improvement, the company was to begin by making the Kanawha navigable from the great falls to the Ohio; then, to improve the navigation of James River from tide water to Pleasant’s Island, by locks and navigable canals, (in other words, to extend its existing canal from the head thereof at Westham, to a point twenty-five miles higher up, and to connect its basin with tide water) ; next, to make the road from the mouth of Dunlap’s Creek to the great falls of the Kanawha ; and last, to make navigable canals and locks from Pleasant’s Island to the mouth of Dunlap’s Creek. The additional improvements were to be made under the superintendence of commissioners to be annually appointed by the legislature. To enable the company to accomplish these additional improvements, it was authorized to borrow money, the legislature providing and pledging funds to pay the interest; additional tolls were given to the company, in proportion to the additional improvements, as sections thereof should be completed; and all the profits of the then existing as well as of the additional improvements, exceeding 12 per cent, per ann. for twelve years, and 15 per cent, per ann. forever afterwards, on the existing capital stock of the company, which was secured to the stockholders, were to be applied to the additional improvements, and to the payment of the interest of ths money borrowed, *and to be accounted for to the legislature. And the company was authorized to acquire the lands necessary for its purposes, namely, two acres for each abutment of a dam or bridge, the same for any lock, the same for any tollhouse, and the width of one hundred and fifty feet the whole length of its canal, by purchase from the proprietors ; and in case the necessary lands could not be acquired by contract, then the company was authorized to proceed to have the quantities of land, abovementioned, or less, at its discretion, condemned for its use, in the manner prescribed by the statute “prescribing certain general regulations for incorporating turnpike companies,” for condemning land for the use of any turnpike road, — changing the forms of the proceedings, as the nature of the case should require. And it was provided, that the company should have the right to enter on lands for laying out their canals, dams and other works, and in making examinations as to the best mode of improvement, in like manner as was allowed to turnpike companies in the statute referred to. See the act of February 1820, Supp. to Rev. Code, ch. 348. The James River Company assented to the alterations of its charter made by that act; and the additional improvements were commenced, and some progress made in the work.
    But the legislature finding it necessary to provide a more effectual method of making the additional improvements, passed another act in February 1823, whereby the existing president and directors of the James River Company were superseded, and all their rights, powers, duties and privileges, were transferred to the governor, lieutenant governor, treasurer and first and second auditors, of the commonwealth for the time being, who were constituted ex officio president and directors of the company. Ample funds were appropriated and pledged *for payment of the interest upon loans previously contracted by the company under authority of former laws, and of the dividends (12 per cent, per ann. for twelve years and 15 per cent, per ann. forever afterwards) on the stock of the company, to the holders thereof. New provisions were made for prosecuting the extended systems of improvement projected by the act of February 1820. In particular, it was provided, that two commissioners should be appointed annually by the legislature, one for the James River canal, and the other for the Kanawha road and navigation, to superintend and direct the execution of the works, with all the powers and rights that had been vested in the James River Company for the purpose. And it- was enacted, “that, whenever it should become necessary to subject the lands of individuals to the purposes provided for in the said act,” (the act of February 1820) “and the consent of the proprietor could not be obtained, it should and might be lawful for the said commissioners, within ' their respective precincts, to enter upon such lands, and proceed to the execution of such works as may be requisite; and the pendency of any proceedings in any suit in the nature of a writ of ad quod damnum, or any other proceedings, should not hinder or delay the prosecution of the work; and no order should be made, or injunction awarded, by any court, by which the progress of the work shall.be arrested; it being the true intent and meaning of this act, that all lands should be liable to condemnation, and that the proprietor should be compensated in damages.” See the act of February 1823, Supp. to Rev. Code, ch. 3S1, p. 433, 441, 2.
    Under this act, further progress was made in the projected improvement; but the work not fulfilling the expectations or wishes of the public, the legislature, on the 16th March 1832, passed “an act incorporating the stockholders of The James River and Kanawha Company,” Supp. to Rev. Code, ch. 377, p. 474, under *which that company was formed, and the act is its charter. It provided, that books of subscription should be opened for the purpose of raising a capital stock of 5,000,000 dollars, in shares of 100 dollars each, and that the state should be regarded as a subscriber for 10,000 shares, to be paid for by a transfer to the New Company, of her whole interest in the works and property of the old James River Company; and that, if the capital of 5,000,000 dollars should be found insufficient to complete the works required of the new company, it should be at liberty to enlarge its capital to any amount that should be found necessary to that end. The James River and Kanawha Company was to take the property thereby transferred to it by the state, subject to the payment of 15 per cent, per ann. forever, to the stockholders of the old company, and subject, moreover, to the pledge of the surplus tolls of the company, made by former laws, for the security of the public creditors, who, on the faith of that pledge, had lent money to The James River Company, for the use of the commonwealth ; but the legislature pledged the faith of the commonwealth to the new company, that it should be protected from the payment of any part of the principal or interest of the debt contracted by such loans; for which purpose funds were provided and pledged. (The effect of which provision, taken in connexion with the provisions of former laws, was, that all the property, and all the rights of every kind, which belonged to the old James River Company, were purchased by the commonwealth at a fair and full stipulated price, and transferred to and vested in the new company.) The affairs of the new company were confided to the care and superintendence of a president and seven directors, to be annually appointed by the stockholders, in general meeting; who were charged with the making and execution of all the contracts of the company, with the construction and preservation of its works, with the ^custody and preservation of all its property, and the control and direction of all its agents. The James River and Kanawha Company was (by § 22, of the charter) charged with the duty of connecting the tide water of James River with the navigable waters of the Ohio, by one of the three following plans of improvement, at its election — either, 1. by a continuation of the lower (the then existing) James River canal, to some suitable point on this river not lower than Lynchburg, a continued railroad from the western termination of such canal to some convenient point on the Great Kanawha below the great falls thereof, and an improvement of the Kanawha from thence to the Ohio, so as to make it suitable for steamboat navigation ; or 2. by a continuation of the James River canal as aforesaid, and a continued railroad from its western termination to the Ohio river; or 3. by a continued railroad from Richmond to the Ohio. Whichever of those plans the company should elect, it was required to complete the works in a substantial and durable manner, and to keep them in good repair, free and fit for public use; and the works it should construct and the property it should acquire by purchase or condemnation, under authority of its charter, were vested in it and its successors forever, for its own use and benefit, exempt from all public taxes &c. And (| 23) if the company should elect to continue the lower James River canal to or beyond Lynch-burg, as part of its improvement, then the charter required, that such canal, in all its parts, from Richmond to its western termination, should be at least forty feet wide at the top, and twenty-eight feet wide at the bottom, with not less than four feet depth of water at all seasons of the year, and should be provided with a convenient towpath, and adapted throughout its whole extent to the navigation of boats of not less than thirty-five tons burden; and that the canal at its lower termination should be connected with tide water, so as to enable such boats with their cargoes, to pass conveniently *at all times into tide water, and descend the river or return. As the dimensions of the new canal prescribed by the charter, far exceeded, in the width as welt as depth, those of the canal which had been constructed by the old James River Company, and the canal was to be extended much farther up the river, and so it might be necessary to -acquire more land for the purpose of the improvement, than that which the old company had acquired and occupied; therefore, it was provided (£ 29) that “the president and directors” (of the James River and Kanawha Company) “their officers, agents and servants, should have full power and authority to enter upon all lands and tenements through which they should desire to conduct their road or canal, or any feeder of the canal, or against which they should desire to abut any dam, and to lay out their road, canal, feeders and abutments, according to their pleasure, so that neither the dwelling house, yard, garden nor curtilage, of any person should be invaded without his consent; that they should describe by certain limits, the lands which they should desire to occupy for the purposes aforesaid, and such contiguous land as they should desire to occupy, as sites for tollhouses, warehouses, stables and 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 entrusted to their care; provided, that the lands so laid out on the general line of the road, canal and its feeders, should not exceed one hundred feet in width; that the adjoining land for the sites of buildings, should not exceed one acre in any parcel or one hundred acres in the whole, and that the land for an abutment should not exceed one acre:” that “it should be lawful for the president and directors to purchase the land so laid out, or any part thereof; and, if they could not agree with the owners on the terms of purchase,” then a process was authorized and prescribed ($ 29, 30, 31, 32, 33), whereby the company should *have the lands condemned for its use. and damages assessed to the owners, to be paid them as compensation. And then, there were the following provisions (ff 34, 35), “While these proceedings are depending for the purpose of ascertaining the damages to the proprietor for the condemnation of his land, and even before they shall have been instituted, the president and directors, if they shall think that _ the interest of the company requires it, may, by themselves, their officers, agents and servants, enter upon the lands laid out by them as aforesaid, and which they desire to condemn, and apply the same to the uses of the company”- — “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 be manifest, that they, their officers, agents or servants, are transcending the authority given them by this act, and that the interposition of the court is necessary to prevent injury that cannot be compensated in damages.” But ($ 36), if the president and directors should take possession of any land, before the same should have been purchased by them or condemned and paid for according to the provisions of the act, or should fail for forty days to institute proceedings for its condemnation, or should not prosecute with due diligence the proceedings commenced for that purpose; then “the proprietor of the land” was authorized to institute proceedings for the assessment of damages “to the owner from the condemnation of his land for the use of the company,” and the court was required to render judgment for him against the company for the damages assessed to him and double costs. When the improvements in the navigation of the rivers authorized by the act should be made, it was declared, that their navigable waters should be deemed public highways, free for the use of all persons whatsoever, paying the lawful tolls (allowed and ^'prescribed by the charter), and conforming to the lawful rules and regulations of the company.
    In making the improvement of the navigation of James River required by its charter, The Janies River and Kanawha Company widened and deepened the old James River canal, so as to make it forty feet wide at the top and twenty-eight feet at the bottom, with not less than four feet depth of water, and thus to adapt it to the navigation of boats of thirty-five tons burden, according to the provisions of the charter. And, in doing this, the company deemed it necessary, in order to give a passage to boats of such dimensions, from the canal into the basin, to cut off a projection of C street, which made an abrupt bend in the old canal, at the point where that street w'as intersected by 7th street, and where the canal entered the basin, and to excavate a part of C street at that point, which had not been occupied b3r the old canal, and to include the same in the enlarged and improved canal. The conipanj' proposed so to widen and straighten the canal at its entrance into the basin (having already widened it above to that point) and to build a broad bridge across the canal at the intersection of C and 7th streets, which should keep the passage along both streets uninterrupted. The company proposed also to make a stone wall on both sides of its improved canal, and all around its basin, whereby the adjoining lands and streets should be saved from being encroached upon by the waters of either, the canal preserved of the uniform width and depth required by the charter, and the basin (without enlarging or diminishing its actual dimensions and capacity) made a more commodious harbor for boats, and its banks more commodious wharves. On the northern and eastern margin of the basin, it proposed to make a public way thirty feet wide, bordering on the stone wall on that side.' And, *as on the southern margin of the basin, its waters covered a part of C street in a waving line, leaving upon an average only forty feet of that street fronting the basin uncovered, it proposed to make a straight wall on that side, from 7th to 11th street, which should include twenty-five feet of C street in the basin, and leave the street uniformly forty feet wide; and then to excavate the bed of the basin within and along that wall, in places where the water had hitherto been shallow, so as to afford a sufficient depth of water all along the wall, for boats of any dimensions that could navigate the canal, to lie along side the wall, and discharge and receive their cargoes.
    The president and directors of the company thought (sincerely, without doubt), that their projected improvement along the lines of their basin, would be highly beneficial to the city, and especially to the owners of property on the southern side of C street, fronting the basin; and in October 1837, they ordered, that the plan of their projected improvement should be laid before the common council of the city, in order to obtain its approbation of and assent to the same, and to ascertain how much, of the expense of the improvement the city would contribute.
    Whereupon, on the 8th January 1838, the common council of the city Resolved, that it would sanction the plan of improvement submitted to it by the James River and Kanawha Company from the east line of 8th street eastwardly round to 11th street — ■ or further (meaning, along C street) if the owners ’of properts7 would consent thereto; and that if the company should proceed to make the projected improvement, the city would contribute one half of the expense, provided the same should not exceed 7000 dollars for the entire improvement: provided that a portion of the northern and eastern bank of the basin thirty feet wide should be left open and ceded as and for a public highway to the city forever; *and provided further, that nothing in the resolution contained should be construed as ceding or surrendering any right of the city to any part of the streets thereof, or to prevent the future improvement of them by the city.
    This resolution of the common council having been communicated to the president and directors of The James River and Kana-wha Company, the board, on the 25th April 1838, Resolved, That the company would proceed to make the projected improvement of its basin and canal, on the following terms and conditions, viz. that the company, with a view of enclosing the basin with a substantial stone wall, would erect such wall, commencing on the eastern line of 8th street upon the neck of the basin, and running thence eastward and around the eastern end of the basin, to C street on the southern side thereof, and as much further along C street to its intersection with 7th street as the owners of lots on C street opposite the improvement would consent to, leaving C street forty feet wide including the wall as part of the street; of the expense of which improvement the city should contribute one half, provided the expense of the whole improvement should not exceed 7000 dollars; and that the company would keep open and in good repair, on the northern and eastern bank of the basin from 8th street around to C street, a space thirty feet wide, free for the use of the inhabitants of the city, as a public way, for the convenience of lading and unlading boats and other vessels on ■'■he basin, and for the transaction of all other business connected with the basin, subject, however, to such regulations of police, as the company should from time to time adopt for the protection and preservation of its improvements, and for preventing interruption to the lading and unlading of boats and other vessels, and to the other proper business of the basin: and that the foregoing resolution, conditions and terms, should be submitted *to the common council of the city for its approbation: It being, however, to be distinctly understood, that while the common council, by adopting its former resolution, or approving this resolution of the company, would not cede to the company any right which the city might have to any of the streets or parts of streets within the limits of the proposed improvement, or debar itself of any right hereafter to improve the same, the James River and Kana-wha Company, on its part, did not, by the adoption of this resolution, concede to the city, any right, present or future, over any street or part of any street which had been heretofore continually covered by the waters of its canal and basin, but the rights of the parties respectively, in regard to such streets, should remain to them in like manner as if the resolutions of the common council, and of the company, had never been adopted.
    In the interval between the adoption of the resolution of the common council of the 8th January 1838, and that of the president and.directors of the company of the 25th April following, the company drew off the waters of the canal and basin, for the purpose of making the projected improvement of the basin, and of the canal at its entrance into it. And after the waters had been drawn off, and while the canal and basin were empty, Richard Anderson, David Anderson. James Walthall and Nicholas Mills, inhabitants and corporators of the city of Richmond, who were the owners of lots with warehouses and other valuable improvements thereon, upon the south side of C street fronting the basin, some distance below the entrance of the canal into the basin (they owned no property upon the canal at that point), exhibited a bill in chancery, in the circuit superior court for the county of Henrico and city of Richmond, against The James River and Kana-wha Company, and The Mayor, Aldermen and Commonalty of the city; wherein, after shewing, that the improvement projected by the ^company would include a part of C street in its canal, and another párt thereof in the basin, and reduce the width of the street from sixty-five to forty feet, — they complained that the work would be very injurious to the owners of property on that part of the street which would be so narrowed; and insisted, that the street was a public highway, to the use of which as such, in its whole length, and full width of sixty-five feet, the plaintiff, and all the citizens of Richmond, and indeed the whole public, were entitled; that the common council of Richmond were bound by the charter of the city, to improve and keep in repair all the streets, and had no authority to cede any part or the use of any part of any street, to any person, or for any purpose incompatible with the use thereof as a highway; that The James River and Kanawha Company was not authorised by its charter, to take for the bed of its canal, or of its basin, or by the waters of either to encroach upon and overflow, any street or any part of any street of the city; and that great injury would be done to the plaintiffs and others similarly situated, by the projected work, if it should be completed, and such injury as could not be adequately compensated in damages, and that the work would be a public nuisance. And, therefore, the bill prayed an injunction to restrain The James River and Kanawha Company from interfering with, diminishing the width of, or otherwise altering C street, and to restrain the company and the corporation of Richmond from carrying into effect, the agreement imported by the resolution of the common council of the 8th January 1838, so far as the same related to C street, or affected the rights, interests and privileges, of the plaintiffs and the other corporators of the city.
    The court awarded an injunction, to restrain The James River and Kanawha Company from doing any act interfering with, diminishing the width of, or altering C street, according to the boundaries and limits '^thereof, as laid down and established in the plan of the city, and from cutting away or excavating any part of the street, or removing the earth therefrom; and to restrain the company and the corporation of Richmond, from carrying into effect the agreement imported by the resolution of the common council of the 8th January 1838 — upon condition, however, that the plaintiffs should enter into bond with surety, in the penalty of 2000 dollars, payable to the defendants, conditioned to pay and satisfy all such costs and damages as they should sustain by reason of the injunction. This order was understood (though, probably, it was not intended) to injoin The James River and Kanawha Company from letting the water again into its canal and basin to the same level and extent as it had always before stood at and occupied.
    The injunction bond was given, and the process sued out. Whereupon, the common council of the city, by resolution dated the 30th April 1838, rescinded its resolution of the 8th January preceding, “leaving the parties concerned to the assertion of their legal rights and privilegesand thus put an end to the treaty between the corporation and The James River and Kanawha Company on the subject of the projected improvement. This was stated in the answer of The Mayor, Aldermen and Commonalty of Richmond to the plaintiffs’ bill; and so the corporate authorities of the city, thenceforth, took no part in the controversy.
    The James River and Kanawha Company in its answer, referred to the act of incorporation of the old James River Company of October 1784 — the act of February 1820, whereby the charter of the old company was altered and amended, and a much more extensive system of improvement provided for — the act of i'ebruary 1823, whereby the commonwealth took upon herself the execution of the work, and all the property, rights and privileges, of the James River Company '*were, in effect, purchased by and transferred to the state— the act of incorporation of the present company of March 1832, transferring to and vesting in it, all the property, rights and privileges, of the old James River Company, and all the commonwealth’s interests in the same — and the act of 1835^36, ch. 110, amending the charter. And then the I answer shewed — That the canal, and the basin, as originally constructed by the old James River Company, and completed as early as 1795, occupied parts of several public streets of Richmond; and that the waters of the basin overflowed a part of C street particularly, intersecting it in two places, and elsewhere overflowing the northern margin of it (as above described) ; and though some of the hollows in the street had been since filled up with earth, by the company itself or with its permission, so as to render it practicable as a highway (which it was not in its natural state), the waters of the basin still overflowed the northern margin of the street, in an irregular line, leaving only an average width of forty feet of the street uncovered: That the basin had been so constructed by the old James River Company, under its original charter, and under claim of right on its part; and, with the exception of so much of C street originally covered by the waters as the company had reclaimed, or permitted to be reclaimed, from the basin, the waters thereof had ever since occupied a part of C street, and the same part which they overflowed when the present company recently drew them off for the purpose of making its projected improvement: That thus, the old James River Company, and all who succeeded to its rights, had occupied and enjoyed the use of the part of C street in question, for the purpose of the basin, for thirty-eight years, without let, interruption, complaint or question, from any quarter: And that the present company was advised and insisted, that this long and uninterrupted enjoyment of the flow of the waters of its canal and basin over parts of the ^streets of the city, and particularly of C street, gave the company, if it had no other right, a perfect title to the continued flow of the waters to the same extent. That the com-, pany claimed no right now, to overflow any part of C street lying along the line of the basin, except so much thereof as had been before overflowed ; it pretended no authority, under its charter, to extend its basin over that part of the street which had been hitherto left uncovered; and did not intend to do so, without the concurrence of the city authorities: all it had proposed was, that as the basin already covered the margin of the street, leaving uncovered a width in some places of more, in other less, than forty feet — an average width of forty feet; and as the basin upon the street was in many places so shallow, that boats of the smallest burden could not come to the shore and line along side of it, to receive and discharge their ladings; therefore, the company had projected the erection of a straight substantial stone wall along the whole length of the basin on that side, which should leave C street of the uniform width of forty feet, and to excavate the bed of the basin within the wall, where it should be necessary, so as to afford a sufficient depth of water for vessels of any burden that could navigate the canal, to lie along side the wall. That such an improvement upon that line of the basin would be very beneficial to the whole trade of the river, beneficial too to the city, and especially to the owners of property on the south side of C street fronting the basin. That it was competent to the common council of the city to authorize such an improvement; but it had no right now to • reclaim from the waters of the basin that part of C street which had *been always covered thereby, and so to contract the dimensions of the basin, as hitherto and so long used and enjoyed by the company, a width of twenty-five feet along the whole length of the basin; but, supposing the common council had a right to reclaim the whole of the street upon the line of the basin, to the full width of sixty-five feet, yet the expense of such a work would be too great to be incurred by the city, since the wall which would be necessary for such an improvement of the street, must, in some part of the line, be seventy feet high. That, as to that part of C street which lies on the canal at its entrance into the basin, and which the company found it necessary to cut away, in order to straighten and widen the canal at that point, so as to afford a passage for boats of the enlarged dimensions mentioned in its charter, the company claimed a right, under the provisions of the charter (as amended by the act of 1835-36, ch. 110), to occupy and use any land it thought necessary for the purpose, not exceeding a width of two hundred feet, whether such land was the property of individuals, or was occupied by a public street or other highway, making compensation in damages to any party’ injured; that the company, however, proposed only to cut away a projection of C street which narrowed and made an abrupt bend in the old canal at its entrance into the basin, leaving the street still spacious enough for all the useful purposes of a highway; that, in this part of its projected improvement, it would not transcend the authority conferred by its charter, and would do no injury at all to any body; no injury, certainly, that might not be adequately compensated in damages; and that, therefore, by the express provision of the charter, the courts of justice were inhibited from awarding an injunction to stay the proceedings of the company in the prosecution of its work.
    Maps were laid before the court, to explain the course and dimensions of the canal and basin, constructed by *the old James River Company, and completed about the year 1795; and to shew, what part of the streets of the city, and especially what part of C street, had been, and was still, occupied by the canal and the basin, what part of C street would be included in the canal and basin by the projected wall along that line, and what part of it would be left uncovered thereby. It appeared, by actual measurement, that the average width of C street left uncovered, along the line of the old canal and basin (after all the improvements which had been made on the street since the canal and basin were first constructed) was only forty feet; and that the wall projected by the company would leave the street uniformly forty feet wide.
    The depositions of several witnesses were taken and filed by both parties, as to the effect upon the value of property on the south side of C street, or contracting the street to a width of forty feet along the line of the basin, by the projected stone wall. Some of the witnesses on the part of the plaintiffs, estimated the damages they would sustain by the projected work, as high as 4000 dollars; but their estimate was plainly founded on the supposition, that the city authorities had a right to reclaim the street from the waters of the basin to its full width of sixty-five feet as laid off in the plan of the city, was bound so to reclaim it, and to improve it, and would do it within some short time. The witnesses on the part of the company thought that no injury whatever would result to the plaintiffs, or others whose property was similarly situated, or to the city, from their improvement projected by the company, but, on the contrary, the work would be highly beneficial to all parties concerned; but their opinion supposed that the street, and the basin too, were to remain in their existing state, unchanged and unimproved, or, at least, unimproved for a long and indefinite term of years. And upon this supposition, it was indeed most clear, that the *projected improvement would be very beneficial to the whole trade of the river, and to the city, but especially so to the holders of property on the south side of C street fronting the basin: it would leave the street of the same uniform width which was now its average width ; it would greatly facilitate the improving, filling up and levelling that part of the street left open, which would still be as wide as D street, the principal street for the transportation of produce and goods in the city; it would afford for the largest boats a near access to the lumber houses, warehouses and storehouses, on the south side of C street, fronting the basin, a nearer access, indeed, than boats of the least burden had ever had; it would afford a commodious harbor for boats, and a commodious wharf to which they could be securely moored, and upon which they could land and from which they could take in their cargoes, while room enough would be yet left for the passage of carriages of all kinds. As to the improvement of C street to its full width of sixty-five feet as laid off in the plan of the city, the northern line of the street, when covered by the waters of the basin, had been sounded; the depth of the water at one point was found to be forty-five feet, and the average depth was sixteen feet; the bottom was alluvial, so that if a wall was to be built upon that line-of the street, it would be necessary to lay the foundation much deeper, or to build it on piles; and the expense of such a wall, and of filling up the street, would be (according to the estimate) 18000 dollars.
    With regard to the straightening and widening the canal at its entrance into the basin, and taking off a part of C street and including' it in the canal for that purpose, it was proved, that that part of the projected improvement of the company, was absolutely necessary to afford a convenient passage from the canal into the basin, for boats of the enlarged dimensions for which the company was bound by its charter to adapt its improvement of the navigation.
    *Upon a motion of The James River and Kanawha Company to dissolve the injunction, the court, in November 1838, decreed, that so much of the injunction as could be understood or construed to restrain the company from introducing the water of James River through the canal into the basin, to the usual extent, and according to the usual flowing of the water before the injunction was awarded, and before the recent temporary withdrawal of the water from the basin by the company with a view to an enlargement of the canal, should be and was thereby dissolved; and that, as to every other purpose of the injunction, the motion to dissolve it should be overruled, and it should remain obligatory on all parties concerned.
    The company presented a petition to this court, praying an appeal from the decree; which was allowed.
    The cause was argued here by the Attorney General, Macfarland and Johnson for the appellants, and by Harrison for the appellees.
    
      
       He had been counsel in the cause,
    
    
      
       James River and Kanawha Company — Right to Oc= cupy Streets — Construction of Charter. — The principal case is cited in Hodges v. Seaboard & Roanoke R. R. Co., 88 Va. 657, 14 S. E. Rep. 380: Richmond Traction Co. v. Murphy, 98 Va. 108, 34 S. E. Rep. 982.
    
    
      
      Railroad Company — Injunction to Proceedings of— When Proper, — In N. & W. R. R. Co. v. Smoot, 81 Va. 504, the court said: Conceding that the plaintiffs can establish that they are entitled to compensation, that the inj ury they complain of is such that it cannot be adequately compensated in damages, and that it is therefore proper for a court of equity to grant the relief to which they may appear to be entitled; yet it is not proper for the court, pending the enquiry into their right to compensation, and before its assessment by law, to interfere by injunction, or otherwise, to stay the proceedings of the defendant railroad company, in laying or using the tracks on the land in respect to which the injury is alleged to be done or threatened, unless It be manifest that the company is transcending its authority, and that the interposition of the court is necessary to prevent injury that cannot be adequately compensated in damages, citing Va. Code 1873, ch. 56, § 13; Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh 42; James River & Kanawha Co. v. Anderson. 12 Leigh 278; Supervisors of Culpeper v. Gorrell, 20 Gratt. 514. The principal case is cited in Supervisors of Culpeper v. Gorrell, 20 Gratt. 514. See mono-graphic note on “Injunctions” appended to Claytor v. Anthony. 15 Gratt. 518.
      Railroads in Streets — Rights of Lot Owners to Compensation.— Sea foot-note to Talbott v. Railroad Co., 31 Gratt. 685. The principal case is cited in Spencer v. Railroad Co., 23 W. Va. 422.
    
    
      
      It is very difficult to describe the localities, to-persons unacquainted with them, without the aid of a map ; which the reporter has yet endeavoured to do. It may afford some aid to the explanation of them, to state, that the city of Richmond is situated on the north side of James River, and is divided into two parts by Shockoe Creek, which runs from north to south into the river. The basin is in that part of the city which lies west of the creek. According to the plan of the city, the longitudinal streets run from S. E. to N. W. in a direction parallel to the general course of the' river there, and are designated by letters of the alphabet from A to. L — A being the front street nearest the river, and L the back and most northern street. These longitudinal streets are intersected by thirty-one cross streets, running from N. E. to S. W. so as (almost all of them) to make right angles with the others ; first street being the most westward, and thirty-first street the most eastward. The natural surface of the ground, from the brow of the river hills to the banks of Shockoe Creek and of the river, was very broken ; and that part of C street bordering on the basin was especially so. — Note in Original Edition.
    
   ATLEN, J.

The 35th section of the act of March 1832, incorporating The James River and Kanawha Company, provides, that “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 be manifest, that they, their officers, agents or servants, 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.” This provision of the charter seems to have been derived from a similar clause contained in the act of February 1823, which was an amendment to the act of February 1820; two laws which, taken together, superseded the old James River Company, converted it into a mere state agent, and vested the whole control of the contemplated '^improvement in the state authorities. The act of 1823 provided, that the pendency of any proceedings, in any suit of the nature of a writ of ad quod damnum, or any other proceedings, should not hinder or delay the progress of the work; and no order should be made or injunction awarded by any court, by which the progress of the work should be arrested; it being the true intent and meaning of the act, that all lands should be liable to condemnation, and that the proprietor should be compensated in damages. Under these laws, no court or judge is authorized to arrest the progress of the work, unless it is manifest that the company is transcending its authority, and that the interposition of the court is necessary to prevent injury which cannot be adequately compensated in damages. Both circumstances must concur. Remedy was provided for all such damages as the legislature deemed necessary to compensate, where the com-pan.y did not transcend its authority. Still it is apparent, that damages for which no adequate compensation could be made, might be sustained from the works of the companj' acting within the limits of its authority. For instance, the health of the proprietors in the immediate vicinity of the canal, or of the refluent waters of the ponds and reservoirs, might be seriously affected. For such injuries no adequate compensation could be made. But the legislature did not consider it proper, that a great public work, intimately connected with the wealth and prosperity of the whole state, should be arrested, in consequence of such partial and unavoidable inconveniences. If the company has not transcended its authority, and these injuries and inconveniences are the necessary consequence of such a work, its proceedings cannot be arrested.

The enquiry, then, is, has the company, in the work complained of, transcended its authority? If it has not, the question is settled. If it has transcended its authority, it would then be proper to examine, whether the *plaintiffs below are likely to sustain such injury that it could not be adequately compensated in damages.

For the purpose of ascertaining whether the company has exceeded its authority, we must look to the first act incorporating a company to improve the navigation of James River, to discover what was the character of the improvement contemplated; enquire what was done by the old James River Company to effect that object ; and then find out what rights belonging to the old company, are vested in the new, and the extent of its authority under the various laws which have passed on the subject. The first act, that of October 1784, incorporating the old James River Company, recites, that the clearing and extending the navigation of James River from tide water upwards to the highest point practicable on the main branch thereof, will be of great public utility, and that it may be necessary to cut canals and erect locks or other works on the sides of the river; and as it would be essential in the cutting of canals, to pass through the lands of individuals, the act provided for the condemnation of the lands necessary for the canal &c. and for the assessment of damages to the proprietors. The first act contemplated the extension of the navigation from tide water to the stream above. To accomplish this, canals round the falls would be necessary, and power was conferred on the company to acquire the land necessary for that purpose. The legislature could not have been ignorant, that if the improvement was made, in the manner contemplated, on the north side of the river, the canal must pass through the city of Richmond. It was legislating within view of the'ground, and within hearing of the falls which created the greatest obstruction to the navigation of the stream. The charter did not restrict the company in the choice of the sides of the river: the public interest, indeed, required that it should conduct

the canal on the north side, if possible, for there was situated the seat of government, and a ^growing city, and one object of the work was to cherish and foster it. Under this act, the company had full power to pass through the city, and it commenced operations. At a very early day, it constructed a canal.passing in part through C street, and terminating in a basin, which, on one side, bounded upon and overflowed a part of C street; a deep ravine occupied a part of the ground of that- street, and constituted a portion of the basin. These works, so constructed, have continued in use ever since. If any doubt of the authority of the company to construct them originally, could have been entertained, the legislature has since recognized them as existing works of the company. Thus, in 1818, an act was passed authorizing Edward Trent to erect a toll-bridge across the basin of the James River Company, in the direction of 9th street in the city of Richmond, if the company should consent thereto, and securing to the company the right of purchasing the bridge upon paying the value of the materials and workmanship. And when, by the acts of 1820 and 1823, the company was converted into a state agent, the state in fact becoming the owner of the works and controlling the whole of them, the basin and canal were continued on the ground originally occupied, and were held and enjoyed by the state, in the name of its agent, The James River Company; the company itself then consisting of some of the chief functionaries of. the government, who ex officio constituted the, board of president and directors. Under this management, the works were extended; and by an act passed in February 1825, it was provided, that as soon as the lower section of the canal should be completed from the basin in the city of Richmond to Pleasants’s Island, the conjpany should be entitled to demand certain additional tolls. These various acts leave no doubt as to the authority of the old James River Company to conduct its improvements through the city; that, after it had done so, adopting the line through C street *now complained of, its works, whilst it held them, were recognized as its property by the state; and that when the state became, in effect, the owner, they were by state authority kept up and enjoyed. In this condition of things, the act incorporating the present company passed. The whole interest of the commonwealth in the works and property of the then James River Company, was transferred to the new company, together with all tolls, rents and other emoluments, rights, privileges and immunities, which were then enjoyed by the James River Company. The preamble of the act incorporating the new company recited, that the measures hitherto adopted to connect the tide water of James River with the navigable waters of the Ohio, had been found inadequate to the object. The 22d section left it to the option of the new company, to adopt one of three modes of improvement; and if that of a canal should be adopted, the- 23d section provided, that it should be not less than forty feet wide at the top, twenty-eight feet wide at bottom, with not less than four' feet depth of water at all seasons of the year. Under this charter, the present company has come into existence. It has adopted the mode of improvement by a canal, and to comply with the provisions of the charter, and accommodate the trade passing on a canal of such capacity, it has found it necessary to widen that portion passing through C street, and to build a wall along the southern margin of the basin on C street. By doing so, it is alleged, it encroaches on the street, though a width of forty feet is still left for the street. Was the company authorized by its charter to make this encroachment? for if it was, then, whatever injury may ensue to the property holders on the street, an injunction cannot be awarded. The history of the acts of the old company proves that it was authorized to pass along this line, that it did so, and that its works were recognized by the state, both before and after they became state property; and we have seen, *that every thing owned by the old company was transferred to the new. The new company, then, unquestionably by this transfer, was entitled to hold, occupy and enjoy the works, as they had been held bjr the old company and the state. But in the event of its adopting a particular plan of improvement, it was required to enlarge its canal. It has adopted this plan, and must of necessity be authorized to encroach on the street, to give its canal the increased capacity required by its charter. The increased capacity of the canal requires, in the judgment of the company, a wall along the basin, to give the proper depth, so that boats navigating the canal can approach the streets and wharves to receive and discharge their freight. It is not necessary for me to say, whether this judgment has been discreetly exercised; though from the facts developed, it would seem to have been exercised in this case, in a manner best calculated to promote the interests of these very property holders, the convenience of the public, and the welfare of the company. The only enquiry that I deem it necessary to make, is, whether the company was authorized under its charter and ■ the laws taken in connection with it? An examination of those acts leaves no doubt upon the subject; and if any damage has been sustained, the parties injured must seek their redress elsewhere. The company has done and proposes to do nothing which the law did not authorize; and acting within the limits prescribed, it cannot be arrested by injunction.

It is argued, however, that the charter prescribes the mode of acquiring and condemning land when wanted for the purposes of the canal; and as there is no provision for the condemnation of the street, the law could not have contemplated any occupation of it for a canal. And this has led to a learned and able argument upon the subject of Highways, the Jus Publicum &c. I do not deem it important to discuss those questions. If the fee in the street is in the original proprietor, subject to *the easement, then there is a proprietor who is provided for by the act. If it is in the city corporation (and I incline to think that there is, and from necessity must be, a difference between streets in cities and towns, and ordinary hig'hwa3rs, and that the fee of the streets should be held to be in the city or town authorities), then the corporation is the proprietor, and can proceed under the act, for compensation; if it is the commonwealth, then the commonwealth has by law authorized the improvement, and requires the enlargement of the canal; and that necessarily leads to an encroachment on the street. For all the purposes of this case and argument, it is sufficient to say, the law authorizes the company to conduct the canal through the city, and to occupy any property not expressly excepted. Streets do not fall within any of the exceptions, and therefore the company has a right to occupy them. If, by doing so, it inflicts injury on any individual, his remedy is at law and in damages, but he cannot arrest the work.

TüCKER, P.

In whatever light I have been enabled to view this case, I am perfectly satisfied, that the injunction never should have been granted, and that upon the hearing it should have been altogether dissolved.

At the very threshold of this enquiry is the question of jurisdiction ; a question first to be disposed of, since, without jurisdiction, this court has no authority to decide the merits of the controversy, except so far as they are inseparably connected with, and lay a foundation for, the exercise of jurisdiction. I shall proceed, therefore, to en-quire, whether the case presented furnished a proper ground for the exercise of equitable jurisdiction by way of injunction? And in doing this, I shall not find occasion to look into the decisions of the courts of chancery, as we are furnished by a higher authority, with a well defined rule which we are not permitted to disregard: I mean the act of 1832. By the 35th section of *that act, it is provided, that “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 be manifest that they, their officers, agents or servants, 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. ” Whether the jurisdiction of the courts of equity in reference to the company, be diminished or not, it may safely be assumed, that it is not extended; and we cannot therefore err, in either aspect, in making this section our guide.

The first question that has been made as to its construction is, whether a concurrence of both conditions is necessary to give the jurisdiction, or whether the existence of only one will not suffice? Upon this question, this court has already pronounced in the case of the Tuckahoe Canal Co. v. the Tuckahoe Railroad Co., 11 Leigh 42. In that case, it was declared, that it was not a sufficient ground of jurisdiction, either that the company was transcending its powers or that an injunction was necessary to prevent irreparable damage. A concurrence of both was necessary to justify the restraining jurisdiction. The words are too clear to require or admit explanation. The copulative “and” leaves no doubt that both grounds must concur, or the power to injoin does not exist. We must do violence to the language, and impute to the legislature the use of “and” for “or,” if we construe the clause otherwise. We should do more: we should violate the obvious spirit and meaning of the law. The whole course of legislation for years in relation to this and others companies incorporated for great public improvements, has indicated the legislative intention to prevent the suspension of operations, and leave the party injured to his ad quod damnum, or his action for damages. This may *be seen by the act of February 1823, $ 22, and by the provisions of the act of 1832 (the charter of the present company) which we are considering; in which last, we find it provided, that even before proceedings for condemnation have been instituted, the company may enter upon the lands laid out by them and apply the same to the uses of the company ; and that no injunction shall be granted to restrain them unless under the concurrent circumstances of violated power and irreparable damage. And can we doubt, that those provisions are wise and salutary? What public improvement could be successfully prosecuted without them? If every individual along the line of the improvement could be entertained on frivolous grounds, and permitted to arrest the works, what end would there be to the mischief? Did not the legislature foresee, and act upon the prescience, that whether the individual complaining sustained irreparable injury or not, the company was sure to suffer the infliction of such injury under the operation of the injunction? and not the company only, but the whole public upon the line of the canal? If the individual be cast, and victory declares for the company, yet by many such victories they will be undone. Have they the means of recovering adequate compensation in damages? Admitting adequate security to be given, instead of the paltry sum of 2000 dollars for arresting the works of this great and important company for three years, how are its damages to be adequately ascertained? They depend upon the tolls it may have lost, and the dead capital and unemployed labourers in its service. Nor is this all. Who can-estimate the injury to others? Who can compensate the farmer and the planter for the mischief he sustains by every day’s unnecessary obstruction of the improvement? Can he justly demand compensation from the company, whose hands are tied against its will? A breach in the canal occurs which a few days might remedy; but the repair is arrested by some captious "x'litigant for months and years. Where is the redress of the whole population, who depend upon the canal for transportation, and are of course unprovided with any other? The basin is drawn off for repairs, which may require but a few weeks: but some dissatisfied person who cannot, or will not, see what is for his own or the public advantage, ties up the company’s hands for years. In the mean time the mills and manufactories dependant upon it for their supplies of water, are stopped in their operations and heavy losses are sustained: who shall indemnify them? The company? As to it, the act complained of is in invitum. The plaintiff in the injunction, for his improper and officious meddling? However he might deserve to be held responsible, it might be difficult to reach him by any form of action; and his suret3r in the injunction bond certainly could not be made liable to any other than the company., Considerations like these, besides the mischiefs to the commonwealth, ever consequent upon such ruinous injuries to her citizens, doubtless gave occasion to the provisions we have been considering. They are wise and salutary; and we should advance the objects of the legislature, instead of defeating them.

There is, however, a conclusive reason for the provision, that no injunction should be granted without the concurrence of the two circumstances of violated authority and irreparable damage. The requisition both of wrong and injury to sustain an action, is one of the most familiar principles in the law. Upon what ground could Anderson be permitted to enjoin the company, if they were pursuing the authority given them by law? Or, upon what principle could he be permitted to arrest their progress, if it did him no injury, and was likely to do him none? If not injured, he has no right to complain; and though injured, he must submit to what the law has authorized. There must, then, be an unlawful act, and danger of irreparable injury to himself, to constitute *any claim to the interference of the court, by injunction.

Assuming then this construction of the law, let us next enquire, whether the two prerequisites exist in this case, which the law demands. I am of opinion that neither exist: I am satisfied, that the plaintiffs below are not injured, but are benefited by the operations of the company; and that it does not appear that the company is manifestly transcending its authority.

As to the first — that the plaintiffs are benefited by the operations of the company: this seems to me very obvious in relation to that part of C street which borders on the basin. That street is at present of only an average width of forty feet, the northern part of which shelves towards the water so as to make several feet of it unfit for the use of carts and wagons. Its northern boundary is waving, being indented by the water of the basin, which flows irregularly upon it, so that the narrowest part of the street may be fairly estimated as its present available width, and this is less than forty feet. The projected improvement will make the street of an uniform width of forty feet. It will be protected by the wall from washing away, and will be raised by it at its northern edge to a level with the rest of the street; thus affording a complete, convenient and permanent pass way for the trade, and for every species of vehicle. Besides this improvement of the street; it will afford to the owners of the property coterminous with it, an excellant wharfage or landing place immediately opposite their lots, where heavy loaded boats may lie along side and receive or discharge their cargoes, with great diminution of expense and labor; whereas, in its present condition, the greatest inconvenience and difficulty must often be experienced. With these views of the effect of the change, it is only matter of surprise, that any judicious lot owner should resist the projected improvement. One or two witnesses, it is true, seem to ^sustain the pretensions of the plaintiffs, but they can be understood onljr to speak with reference to the improvement of C street to the width of sixty-five feet, and not to its present condition. No one could venture upon the rash assertion, that the change from that condition to the proposed plan, would injure the parties .to the amount of 4000 dollars; and the respectable witness who made the estimate of injury could Hot, I am persuaded, have intended to be so understood. But admitting that the extension and completion of C street to sixty-five feet would be more advantageous to the lot owners, provided its northern limit was bounded by a substantial wall, it still remains to be proved, that such completion and extension will be prevented by the present plan, or that there is the remotest probability of its ever being carried into effect by the city authorities. If the company has no right, under its charter, to cover part of the street with water, the common council of the city may proceed at its pleasure and discretion to fill up the twenty-five feet, and complete the extension to the legitimate limits. But this it is not obliged to do, and is not likely to do. It is not obliged, because, under its powers of regulating the streets, it is its province to determine in what manner it is most advisable to regulate them, and I know no power to control it where there is no wanton exercise of its discretion. It is not likely, I should imagine, to attempt the extension, from the situation of that twenty-five feet of street. It varies in depth from fourteen to forty-five feet; and a wall would be necessary of that elevation at least, to effectuate the object. It may, therefore, well be doubted, whether, in the exercise of a judicious discretion over the subject, the common council of the city would not decide, that it would be better that there should be a good and convenient street of earth of the width uf forty feet, and that the residue of the width of the street, which never was available as a passway, and could not be so ^rendered without immense expense, should be brought into efficient and valuable use by the unex-pensive operation of filling it with water, and using it as a roadstead for the convenience of the tráde. Hitherto, the common council has manifested no desire to interfere. Though the hands of the company have been tied for three years, the common council has made no advances to extend and complete the street, but it remains in its pristine condition — covered to the extent of twenty-five feet, as it has been, with water to the depth of from fourteen to forty-five feet, and the residue of it in a dilapidated state. If then the plaintiffs are injured by the narrowness of the street, it is of the common council only that they have reason to complain; but, in truth and in fact, these complaints are without foundation. The city authorities either approve or acquiesce in what has been done, and is proposed to be done; and wisely too, since it is judicious as it respects the public, and highly advantageous to the coterminous lot holders.

With respect to that part of the street occupied by the canal, it cannot be denied, that it could have been extended and improved with less expense than that which lies upon the basin; and it is also true, that it was not to the same extent covered with water. But on the other hand, it does not adjoin the plaintiffs’ property. The property of the plaintiff Anderson lies in another square to the eastward, and that of Mills two squares off. As well might a lot owner at Rocketts complain of the narrowing of the main street on Shockoe hill, and bring his private action or bill for an injunction. Such remote injuries common to the whole population are to be remedied by the action of the constituted corporate authorities, or by prosecution for a nuisance. If Anderson and Mills can implead the defendants for narrowing a street not contiguous to their property, everjr man in the community might do so. To prevent this evil, the law forbids an action by a private individual *for a common nuisance, unless he can shew a special injury; and hence it would seem to follow, that an injunction will not lie for anticipated injury arising from a common nuisance. Be this as it may, I am of opinion, that the plaintiffs were not entitled to their injunction to restrain the company’s operation along that portion of the street which doefe not join their property, but they should have been left to their special action upon the case for any injury sustained by them individually. It is not perceived that their damages, if any, could not have been easily ascertained, and adequately compensated.

If I am right in these views, it is clear, that one of the terms made essential as a prerequisite to an injunction against the company does not exist in this case. The other is equally wanting. It is “not manifest that the company is transcending the authority” given it by its charter. By the requisitions of the charter, the company was required to connect the upper navigation of James River with tide water. It was obvious that this could only be done by passing through the city of Richmond. Por the purposes of its works, it is authorized to enter upon any lands and tenements through which it desires to conduct its canal, without any limitation or exemption, except of the dwelling house, yard, garden or curtilage of any proprietor. The streets and highways, which must obviously be encroached on, are not excepted. The streets of Richmond, therefore, are as much subject to be entered upon for the use of the company, as any other property. Moreover, it is provided that “even before any proceedings shall have been instituted” for the condemnation of the required propertjr, the company may enter upon the lands laid out by it, and apply them to its uses. The company is required, indeed, to proceed also to condemn. But if it fails, it is not to be arrested, but the proprietor may himself proceed. And this provision u'as judicious. *It might be difficult, as it proves to be here, to ascertain the proprietor, and it would have been mischievous to arrest a great •work till this could be done. The company, therefore, was authorized to take the property beforehand. This it has done. Its doing so is no barrier to the action of any person, whether private, public or corporate, who may have title to the property, except so far as public or corporate rights may have been yielded by the operation of the statute. On this subject I give no opinion, because it is unnecessary to do so in settling the question of jurisdiction. It is clear, however, that if the title is in the heirs of Byrd, or of his trustees, their proceeding is not barred or impeded by any act of the company. And so as to the plaintiffs, if indeed, under the 36th section of the charter, any proceeding can be had by a party claiming only an easement.

In no aspect of the case, then, can I perceive that the company has transcended, or is transcending, its authority; and on this point also the plaintiffs’ case is radically defective.

The injunction ought never to have been granted, and should have been wholly dissolved.

BROOKE and CABELE, J., concurred.

Decree reversed; and ordered, that the injunction should be dissolved and bill dismissed, with costs.  