Tuckahoe Canal Co. v. Tuckahoe & James River Rail Road

The Tuckahoe Canal Company v. The Tuckahoe and James River Rail Road Company

Tuckahoe Canal Co. v. Tuckahoe & James River Rail Rd., 11 Va. 43 (1840)

Court: Supreme Court of Virginia · State Highest Courts
Decided: March 15, 1840
Judges: Tucker
Citations: 11 Va. 43

Cited by 1

Headnotes

A monopoly cannot be implied from tbe mere grant of a charter to a company to construct a work of public improvement, and to take the profits; to give such monopoly, there must be an express provision in the charter, whereby the legislature restrains itself from granting charters for rival and competing works. Therefore, where the legislature granted a charter to a company to construct a navigable canal along the valley of a stream, and in consideration of the work to take the profits, without any provision against the exercise of power to charter other and rival companies, the legislature was nowise restrained from chartering a company to construct a railroad along the same valley, though the railroad shall afford the same public accommodation as the canal, and may in effect impair or annihilate its profits. A navigable canal being constructed by a chartered company along the valley of a stream, a company is afterwards chartered to construct a railroad along the same valley; if the termini given for the railroad be such thaj; it may cross the canal, the railroad company is authorized to lay out its road so as to cross the canal; but in such case, the railroad must he so constructed as nowise to obstruct or impair the navigation, the railroad company being liable to the canal company for all damages which may result therefrom. The general railroad law of 1836-7, ch. 118, authorizes a railroad company to have condemned for its use, lands which a chartered canal company has acquired for its canal, as well as lands of individuals ; and if the canal company has only acquired a right of way in the lands occupied by the canal, the railroad company may have the lands condemned for its use, as the lands of the . original proprietor, subject to such right of way. the 13th section of the general railroad law, the court of chancery is deprived of jurisdiction to injoin a railroad company from proceeding to prosecute its work at its peril, upon the application of an elder canal company, whose canal the road is projected to cross; the railroad company not thereby transcending its authority, and the injury, if any, to the canal company being such as may be adequately compensated in damages. By

Summary

Tuckahoe Creek is a small tributary of James River, into which it falls about ten miles above the city of Richmond. It is the dividing line, from its source to its mouth, between the counties of Henrico on the east, and Goochland on the west of the stream, the general direction of its course being from north to south; and it passes through a body of coal lands lying in both those counties, in which coal mines have been opened and worked, for many years, by several proprietors. By an act passed on the 1st of March, 1827, the general assembly authorized six managers to open books for receiving and entering subscriptions to the amount of 20,000 dollars, in shares of 100 dollars each, for the purpose of constructing a canal from some point on the James River canal, west of Tuckahoe Creek, to some point on the creek in Goochland, near Crouch’s coal pits; and enacted, that whenever two-fifths or more of the capital should be subscribed, the subscribers should be incorporated a company by the name of The Tuckahoe Canal Company, with all the rights and privileges, and subject to all the regulations, restrictions and provisions, of the general law concerning turnpike companies, 2 Rev. Code, ch. 234. That whenever two-fifths or more of the capital should be subscribed, the managers should call a general meeting of the subscribers, at which the shareholder holding a majority of the shares actually subscribed, should have power to make all necessary rules and regulations, and to elect a president and two directors, for conducting the canal, and so much of the company’s business as should be confided to their care. That the president and directors should have power to agree with the owners of lands through which the should pass, for the purchase of so much thereof as should be necessary for the canal and the works incident thereto, or, in case of disagreement to proceed to have the lands condemned according to the provisions of the general law concerning turnpike companies. That in case any owner of land on either side of the canal should apprehend damage from the work, any two justices of the peace of the county in which the land should lie, should, at his instance, issue a warrant to the sheriff to summon a jury to assess the damage if any which such proprietor would sustain, and the damage so assessed should be paid to the proprietor by the company before it should proceed to the cutting of the canal. That in consideration of the expenses the company would incur in making the canal, and keeping the same in repair, the canal with’all its profits should be vested in the subscribers, their heirs and assigns, as tenants in common, in proportion to their respective shares. That the president and directors should have a right to demand and receive tolls, according to a tariff prescribed by the charter, for the whole work, and to demand and receive a fourth of those tolls, so soon -as the canal should be rendered navigable for boats drawing two feet water as far as Buck Branch (a small stream which falls into the Tuckahoe about a mile from the James Elver canal). Provided, that nothing in the act contained should authorize the diversion of the Tuckahoe, or any part thereof, into the canal, or the erection of any dam across the creek. And that the canal should be completed within five years from the passing of the act; and if the navigation should not be completed within that time, all the r*§kts an<l privileges thereby granted should cease and determine. Sess. Acts 1826-7, ch. 64, p. 56. At the time this act was passed, the James River canal crossed the Tuckahoe by an aqueduct, on a level geyeral feet above the level of the creek, and immediately after crossing it, was let down by locks into the creek, which, thenceforth to its mouth, was part of the canal. And as no part of the waters of the creek were to be diverted into the Tuckahoe canal, it was, according to the original plan of the work, to be supplied with water from the James River "canal, by a feeder taken from its upper level, which was high enough to supply water to the lateral canal for its whole extent. The charter of the Tuckahoe Canal Company was altered, at the instance of the compapy, by an act passed on the 11th January, 1828; whereby the company was authorized to make a railroad on so much of the ground intended for the location of the canal, as the company should deem expedient; provided that it should not thereby obstruct any private roads or ways, or such other roads as were convenient for persons traveling to Tuckahoe mill; to make navigable any part of Tuckahoe Creek lying between the James River canal and the mouth of Buck Branch by deepening the same, or, if necessary, by erecting a dam and lock for raising the water of the creek, so that it should not be raised more than a foot above the ordinary level; provided it should not charge more than a sixth (instead of & fourth) of the whole toll, for the navigation from Buck Branch to the James River canal: and to cross the Tuckahoe at any point above Tuckahoe bridge on the main road, so as not to raise the water in Tuckahoe mill pond, or the creek above it, higher than its then level, or to obstruct the course of the water in the mill pond or the creek. Sess. Acts 1827-8, ch. 106, p. 75. The company, however, proceeded with the work upon a plan different from that authorized either by the original act of incorporation or by the amendment of its charter. And on the 9th February, 1830, the general assembly passed another act, reciting that the company had proceeded to locate and commence the canal authorized by the acts relating thereto, along the bed of the Tuekahoe, with the consent of all persons interested therein or affected thereby, instead of pursuing the independent canal required by those acts, and that it was desirable that an act should pass to authorize such change in the location of the canal; and therefore enacting, that the company should be authorized to extend the canal along the bed of the Tuekahoe from the James River canal to the upper locks on the lands of John Wickham, and from the dam erected across the creek above Tuekahoe bridge, to Crouch’s lower bridge, and with the concurrence of all the stockholders, by instrument in writing and recorded, to extend the canal along the bed of the creek to the mouth of Deer Ren Branch; and that the dam across the canal above Tuekahoe bridge, which had been already erected, should be authorized as if the same had been erected according to law: provided, that nothing in the act contained should be so construed as to affect any agreement between John Wick-ham and the company, and that the company should have no right to obstruct the course of the water of the Tuekahoe to the mill of the said Wickham, contrary to the terms of such agreement. Sess. Acts 1829-30, ch. 60, p. 58. Mr. Wickham was the owner of the lands on the Tuekahoe, from the James River canal to the dam erected by the company, and of Tuekahoe mill also, which was on the creek some distance below that point, with the mill pond and the land covered by it, of considerable extent, appurtenant to the mill; and the agreement referred to in the last act, was a con-between him and the company, stating the terms-on which he consented that the company should make--£g canai through his land, and should have the use. of the waters of the Tuckahoe for supplying the same.. But though the company had, in the execution of the work, complied with those terms, the contract had not been executed on either part by deed. The work was executed according to the provisions of the charter contained in the three acts of assembly above recited, taken together. From the head of the. navigation to the dam mentioned in the last act, the-improvement was made by deepening the Tuckahoe,. in some parts, clearing away obstructions, and so rendering it navigable, and by cutting canals, in other-parts, whereby the stream was straightened; from the dam to the mouth of Buck Branch, a canal was cut,, which was supplied with water partly from the Tuckahoe, and partly by a feeder from the James River canal; and at the mouth of Buck Branch, locks were constructed to connect the canal with the stream of the Tuckahoe, which was deepened and rendered navigable from the locks to the James River canal. The canal from the dam to Buck Branch crossed the main road from Richmond to Goochland courthouse, a bridge being made across the canal for the road to-pass over, high enough to admit the passage of any boats along the canal, which could be used in the navigation, in the then state of the improvement. The whole length of the canal, from the head of navigation to the James River canal, was five and a half miles. It did not distinctly appear in proof, when the work was completed. After it was completed, the company demanded and received the full tolls, allowed by its charter: but though, by the charter, it was “subject to all the regulations, restrictions and provisions of the general law concerning turnpike companies,” it never complied with, the provisions of the 17th and 29th sections of that statute.* The company insisted, that the provisions of the 17th section were nowise applicable to its cáse. And as to the provisions of the 29th section, it appeared, that though the company paq na¡. mac|e the report to the hoard of public works thereby required, and though the attention of the board was called to the subject in 1831, the hoard, at that time, for reasons satisfactory to them, declined to act upon it, and had never since thought proper to reduce the tolls. The Tuckahoe canal was- so constructed as to afford navigation for any boats that could navigate the James River canal, as that canal was then constructed. But The James River and Kanawha Company having proceeded, under its new charter, to enlarge that canal, so as to afford navigation for boats of much larger burden, and to conduct the canal in that part on a higher level than the Tuckahoe, a corresponding change in the construction of the lateral Tuckahoe canal was thereby rendered necessary. And by an act of assembly passed the 9th April, 1838, The Tuckahoe Canal Company was authorized to increase its capital to the amount of 30,000 dollars, and to enlarge the dimensions of its canal and works, and to alter the construction thereof, in the manner provided in the act. Sess. Acts 1838, ch. 204, p. 148. But, in the meantime, namely, by an act passed on the 27th March, 1837, The Tuckahoe and James River Railroad Company was incorporated, for the purpose of constructing a railroad from the lands and coal mines of Martha Ellis, in Henrico, to such point on the James River canal as the company should select. For this work, the act authorized the raising by subscription of a capital of 40,000 dollars, in shares 100 dollars each; and it gave The Tuckahoe Oanal Company the privilege of raising the capital, and of executing the work, provided that one hundred shares of the capital should be subscribed, and the work commenced, within two months from the passing of the act, and completed within twelve months thereafter. But if that number of shares should not be subscribed, and the work commenced and completed by The Tuckahoe Canal Company within the times specified, the act provided, that the privilege thereby granted to that-company, should, m that case, be forfeited: and that, then, books should be opened for receiving and entering subscriptions for the capital of 40,000 dollars in shares of 100 dollars each, and when one hundred shares thereof should be subscribed, the subscribers should be incorporated into a new' company by the name of The Tuckahoe and James River Railroad Company, for the purpose of constructing the said railroad; which company should be subject to the provisions of the general law prescribing certain general regulations for the incorporation of railroad companies.* Sess. Acts of 1836-7, eh. 132, p. 124. The Tuckahoe Canal Company did not avail itself of the privilege conferred upon it by this act, of constructing the railroad from Mrs. Ellis’s coal mines, to the James River canal. And, thereupon, books were opened for receiving and entering subscriptions to the capital of 40,000 dollars; the capital, or a sufficient number of shares thereof, were subscribed; and the subscribers became incorporated into the new and distinct company of The Tuckahoe and James River Railroad Company. This new company projected its railroad from Mrs. Ellis’s coal mines in Henrico, east of the Tuckahoe, to a point on the James River canal also east of that creek, hut so as to cross the Tuckahoe Canal at two points. The only motive for thus crossing the line íu m 1 1 n -I 4- . the Tuckahoe Canal was to save expense m the construction of the railroad. It might have been laid out altogether on the east of the Tuckahoe without crossing the Tuckahoe Canal; and that route, in the opinion of the witnesses, would have been as eligible as the one which was adopted, except that the expense of the work would have been greater. The railroad, as projected, was to cross the canal on two bridges. At the upper crossing, the elevation of the bridge was to be six feet six inches above the common water level of the canal; but only three feet six inches above the towing path; and the space between the abutments was forty-six feet: the elevation of the bridge at the lowep crossing, was to be thirteen feet above the canal, and the space between the abutments a hundred and forty feet. The elevation of these bridges above the canal, and the spaces between the abutments, were greater than the elevation of the bridges, and the spaces between the abutments thereof, which had been erected by The Tuckahoe Canal Company for the crossing of public and private roads over the canal. ^e grading of the railroad according to this projection, was completed in April, 1838, and contracts for the whole work had been made, and a good part ^ ha(j keen ¿[onej earlier. ^ugust) 1838, The Tuckahoe Canal Company exhibited a bill, in the Circuit Superior Court of Goochland, against The Tuckahoe and James River Railroad Company, in which, after setting forth the charters of both companies, the actual construction of the canal, and the projection of the railroad to cross the canal at two points, they insisted, that the charter of the Railroad Company gave it no right to run its road across the canal at all; that the legislature had by design withheld the grant of such a right in the charter; and upon general principles of law, the Railroad Company had no such right. That the' Canal Company had a right, not only to enjoy the profits of its work, free from obstruction, in the then state of the improvement, but also to enlarge and improve its canal, so as to correspond with the late improvement of the James River canal. And that the erection of bridges for the projected railroad, especially the erection of the upper bridge, at the elevation proposed, would obstruct or impede the navigation of the canal, and the use of the towing path, even in the then state of the work; and would utterly prevent the Canal Company from enlarging and improving its canal, so as to correspond with the late improvement of the James River canal, and to afford a navigation for boats of the same dimensions and burden with those that navigated the James River canal, as enlarged and improved. Therefore, the bill prayed an injunction to restrain The Tuckahoe and James River Railroad Company from constructing any bridge or railroad, or arch of any kind, across the Tuckahoe canal. . The injunction was awarded. The Tuckahoe and James River Railroad Company, J 7 in its answer, insisted, that The Tuckahoe Canal Company was nowise entitled to the aid of the Court of Chancery, because it had not in fact constructed its canal, and kept it in repair, so as to afford a navigation for such boats as navigated the James River canal at the time the Tuckahoe canal was constructed, and because the Canal Company had from the time of the completion of the work (which, the defendants alleged, was completed as early as 1831) continued to exact full tolls, yielding an enormous profit on the capital actually expended, and had never made any such report to the board of public works as the company was bound by law to make, in order that the board might determine whether it was proper to reduce the tolls. That the Canal Company had acquired no legal title in the land upon and through which it had dug its canal, but claimed only under an executory contract with Mr. "Wickham, which had never been executed by deed; and therefore, any part of that land was still liable to be condemned, as the land of Mr. Wickham, for the use of the Railroad Company. That, as against the Railroad Company, the Canal Company had no right to enlarge and improve its canal so as to correspond with the late enlargement and improvement of the James River canal, since it could only claim such right under the act of assembly passed on the 9th April, 1838, and the charter of the Railroad Company was passed on the 27th March, 1837, under which the Railroad Company had been incorporated, had commenced its work, and had made great progress therein-before April, 1838. That the Railroad company had a right to construct its road on any route it thought proper, between the'two points mentioned in its char- and to cross tbe line of the Tuckahoe canal, provided the road should be so constructed as not to ob-g£ruC£ or impe(je the navigation of the canal; and that, jn fact, the railroad bridges would nowise obstruct or impede the navigation of the actual canal, since they were to be erected at án elevation greater than that of any of the bridges which the Canal Company had itself erected across the canal. That, at all events, the Railroad Company had a right to construct its road so as to cross the canal, in the manner proposed, even if it should thereby obstruct or impede the navigation of the canal, in which case the Canal Company would only be entitled to compensation in damages; and that the Court of Chancery had ho jurisdiction to interfere by way of injunction.* In March, 1839, the-Circuit Superior Court dissolved the injunction, so far as the same restrained the Railroad Company from erecting a bridge for its road, across the canal, at an elevation of six feet or more above the toioing path of the canal. The Canal Company applied by petition to this court for an appeal from the order; which was allowed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Tucker

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Tucker, P.

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

Conceding, without question, the power of the judiciary to examine into and decide upon the constitutionality of laws, it cannot be denied, that it is a power which ought not to be lightly exercised. The separation of the legislative and judicial powers, and the inhibition of the invasion by the. one of the powers of the other, demands that we should be cautious lest we transcend our own limits, in the attempt to confine a co-ordinate branch within its legitimate boundaries. We must carefully distinguish between legislative discretion and legislative power. With the former we have nothing to do, however harshly or injudiciously it may have been exercised. With us, this question is a question of power, not a question of the judicious exercise of it. With these views of our authority to pronounce upon the constitutionality of a law, I have *72 considered the questions submitted in this case with earnestness due to their importance.

The first appears to me to admit of no reasonable j-fc pag peen contended, that a charter having peen granted to the Canal Company for the construe- ° , , . ,. . . tion oí a canal along a certain line, it is not within the constitutional power of the legislature to grant another charter for another improvement running side by side with the first, although in the first charter there is no express grant of exclusive right, and although the second improvement does not cross the line of the first. On the other hand, it is contended, that if the grant contained in the first charter be not exclusive, if the law which created it has not provided that no rival improvement shall be constructed by legislative authority, it is at all times competent to the legislature to grant new charters to rival companies upon the same line, even though the value of the first may be impaired or utterly annihilated thereby. In the latter opinion I concur. Such legislation may be, and indeed often is, unwise, unjust and ruinous; but those are considerations which are in vain addressed to us, where the legislative body acts within the pale of its authority. That authority knows no limit but the charter of the government, and in that charter the only relevant provision is that no law shall be made impairing the obligation of contracts. The question then resolves itself into this:' Has the legislature contracted with the Canal Company, that it shall have the exclusive transportation of the Tuckahoe valley, and that no rival company shall be incorporated which may impair its profits or take away its custom ? That it has expressly done this, cannot be pretended. The act of incorporation contains no such provision. Is such a contract on the part of the government to be implied from the grant of the charter for the construction of the canal ? I think not. It can never be con *73 ceded, that the incorporation of one company for internal improvement, is an implied negative of all ture power in the legislature to incorporate other companies for other improvements. Such has never been the interpretation of legislative grants in Virginia, but wherever exclusive rights are intended, express provisions are introduced for the purpose of tying up the hands of the legislature, and restricting the future exercise of legislative power. It never was dreamed, that the establishment of one bank was in itself a negative on the power to establish others. It never has - been admitted, that making one railroad was a negative to all future power to construct another which might rival it; but where that was the design of the charter, it has ever been so expressed; as in the act of 1833, ch. 3, § 38, the rights of the Richmond and Fredericksburg Railroad Company are expressly protected, for a limited time, against all rival charters. Were it otherwise, what difficulties would present themselves! Without express and definite provisions and limitations, how could we ascertain the extent of the exclusive right? Experience has proved, that monopoly is very ingenious in extending its rights and enlarging its pretensions. Give it the carte blanche of an implied contract, and we should soon find it without other limit than the limits of professional ingenuity; and the great mischief would at once present itself, of the improvement of the country being arrested by the perpetual objection of interference with chartered rights. Chartered companies are ever sensitive at the approach of a rival, and if the discovery of a possible clashing of interests shall be held sufficiently to nullify a subsequent charter, it is impossible to foresee to what extent the legislative power may be crippled in this important branch of its duties. Already have we seen the passage of an act incorporating a railroad company from *74 Norfolk to Weldon most vehemently opposed by a former company established between Petersburg and Roanoke. So the making a railroad from Richmond ^ Lynchburg was warmly opposed by the James River and Kanawha Company, And here we see the Tuckahoe Canal Company insisting that their privileges are invaded by the chartering of the Tuckahoe and James River Railroad Company. If these pretensions are listened to, there will soon be an end of the necessary improvement of the country. But they are without foundation. Monopoly is not a matter of inference.. It must rest its pretensions upon express grant. It is a restriction upon common right, and upon legislative power, and cannot be implied. What then is here insisted on? Is it a monopoly of the ■right to take tolls for the transportation on the canal? If this be all, we cannot gainsay it. The canal is their own property; and property necessarily implies a right in the owner, to the exclusion of all others. Is it a monopoly of the right to the transportation of the Tuckahoe valley? If so, the claim is not admitted. Upon the principles maintained by their own counsel, it is denied. What right, upon those principles, has the legislature to take from the colliers the liberty of transporting their coal by wagons, or in any other mode they may elect? What right to prevent their purchasing from the landowners the necessary ground, and constructing a railroad without a charter? So far as respected the Canal Company, the Railroad Company needed no charter to legalize their operations, if they did not cross the canal. It was only necessary to enable them to condemn the lands of others, and to sue and be sued. They do not derive their right to make such a road for transportation of coals from legislative grant. They would have had that without it, and it could never be affirmed, that a charter to them invaded the previous charter, since, so far as the *75 Canal Company are concerned, a charter would have given them nothing more than they had had before, viz: a right to withdraw their coals from the canal transportation, and to transport them by land for themselves and others, according to their own pleasure and ability.

After the very able and comprehensive investigation of this subject in the case of The Charles River Bridge v. The Warren Bridge, it would be superfluous as well as vain for me to attempt or enforce by any arguments of mine, the principles established by the majority of the court, and sustained with such conspicuous ability by the counsel for The "Warren Bridge. It will suffice for me to refer to that case, and to express my assent to the proposition it establishes, that the incorporation of a company for the construction of a bridge or other improvement, where the public interest is concerned, is not to be construed as conferring exclusive privileges, where none such are expressly given by the charter; and, by consequence, that by charters of this description the legislature is not deprived of the power of granting other charters to other companies, even side by side with the former, and in the same line of travel, provided there is no express restriction upon their power in the first act of incorporation. Every principle of sound policy, indeed, forbids that this should be lightly done; or that it should be done without securing some indemnity to those who suffer under such legislation. But it is not matter of right in the company; it is matter of discretion in the legislature; and hence, it is very clearly no matter for judicial decision. The injury done is not more direct than that which is in various instances occasioned by laws of unquestioned validity. The inns and villages upon every public road fall into dilapidation and ruin, upon the change of the course of travel by the construction of a railroad, and flourishing towns which *76 have risen to wealth and importance on the faith of law, by being made a port of entry, sink into insignificance upon the removal of their custom houses more favoure(j Sp0ts. Yet who doubts the power, though many may doubt the wisdom of the legislature, iu making ill advised changes, which bring ruin upon the enterprising, and misery upon thousands? This sport with human prosperity and happiness, indeed, cannot be too much reprobated; but its corrective is to be found elsewhere, and not here, unless the legislature transcend its power; and we have already seen, that unless exclusive rights are contracted for, the legislative power is without a trammel.

The case before us, however, is unlike any that has heretofore occurred, in one very important particular. The Tuckahoe Railroad Company set up a pretension to run their road across the canal, on a bridge of a certain elevation. They are not content with passing on side by side with their rival, but they assert a right by their charter to cross his line of improvement. This brings us to the inquiry, how far the legislative*power is adequate to the grant of such a right? And here, I imagine, the right of eminent domain, which rides over every other, will be found sufficient for the purpose. It is well observed by my Brother Brooke, in his lucid opinion in the case of Stokes v. Upper Appomattox Company, 3 Leigh 337 , on the subject of the jus publicum, that “though our institutions and laws are justly tenacious of private' rights, yet the ruling principle of them is, that where private rights come in conflict with public, the former must yield to the latter; in which event, the legislature alone is competent to make compensation.” It may, indeed, be truly said, that this jus publicum, this eminent domain, is the law of the existence of every sovereignty. It is as vital to it as air to animal life; and hence, it has no limit but the necessities of the body politic, of which *77 that body alone must be the judges. It is absolute over the persons, as well as the property, of its members. It commands the sacrifice of life, as well as the surrender of possessions; and it would be strange, deed, if to that sovereignty which can compel me to lay down my life in its service, the power should be denied of taking my property for its uses. At this time of day, it is too late to set up any barrier to that power. It has been in constant exercise since the existence of society, and must continue unrestricted so long as society shall last. It has been exerted in the establishment of every common road through the country; in the erection of public buildings, the condemnation of land for public improvements, the impressment of property flagrante hello, and in various other modes not necessary to be here stated. In its exercise, however harsh, it never has been deemed to be a violation of individual right, or a breach of contract with the subject, either express or implied. For though the sovereignty has granted its land, or its privileges, without an express reservation of a right to take them for public uses, yet that right is necessarily implied; and even if alienable at all, it is not to be presumed to be surrendered without an express abandonment. As was observed by Chief Justice Marshall of the taxing power, “ The whole community is interested in retaining it undiminished, and that community has a right to insist that its abandonment should not be presumed where the deliberate purpose to abandon does not appear.”

It seems to be supposed, however, that the rights of the Canal Company which are called a franchise, cannot be invaded, though the power to take other private property for public uses may not be denied. It is proper, then, to come to a proper understanding of this word franchise, that we may the better comprehend what is to be regarded as trenching upon it. *78 Now, I take a franchise to be, 1. an incorporeal hereditament, and 2. a privilege or authority vested in certain persons by grant of the sovereign, (with us, ^y gpec^a¡ gtatute) to exercise powers, or to do and perform acts which without such grant they could not do or perform. Thus, it is a franchise to be a corporation, with power to sue and be sued, and to hold property as a corporate body. So it is a franchise to be empowered to build a bridge, or keep a ferry, over a public stream, with a right to demand tolls or ferriage ; or to build a mill upon a public river, and receive tolls for grinding, &c. But the franchise consists in the incorporeal right; the property acquired is not the franchise. A bank has a right to purchase a banking house: when purchased, is the house a franchise? Surely not, for it is corporeal, whereas a franchise is incorporeal. So of a railroad company: it has the franchise to condemn land for its road, which at once becomes vested in the company in absolute property; but the land is not the franchise. It is real property held by the company upon the same implied terms, on which others hold their lands, that it may be taken for public uses upon compensation being made. Indeed, in former days, the eminent domain in the establishment of roads was exercised (as we are reminded by Judge Brooke in the case before cited) without compensation; but it is now very wisely and justly provided by the constitution, that in all cases where private property is taken for public uses, just compensation shall be made to the owner for his loss.

It is not then perceived that the property of a corporation is less liable to the exercise of the jus publicum, than the property of a private individual. In both eases, the private right must yield to the necessities of the public, and in both the public must make compensation for the loss. In the former, indeed, the necessity is more apparent; for were it *79 otherwise, the greatest mischiefs would ensue. The James River Canal running east and west, and the railroads running north and south, might very seriously impede the intercourse between the different parts the state, if the companies have the right to prevent the passage across their line of improvement, and the jus publicum cannot be exercised in the creation of new roads to meet the growing exigencies of the country. A person fifty yards from his mill, or county courthouse, may be driven to the necessity of traveling miles around to reach them, or of submitting to the unreasonable exaction of a monopolist. It would be difficult to make him comprehend, how the legislative power could extend to taking away his land to make the railroad, and could cut him off from his ordinary comforts and conveniences, and yet be inadequate to the exercise of the eminent domain in giving him a right of passage across the line of the improvement thus constructed to his detriment.

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

But several questions here present themselves: 1. Is it necessary to the validity of the act, that compensation should be provided before the property can be taken ? The constitution provides, that the legislature *80 shall pass no law whereby private property shall be for public uses without just compensation. And although there is no express requisition that the act invades the right shall provide the indemnity, yet, after much reflection, I incline to the opinion that it should do so. The instances which may occur flagrante hello, of impressments and destruction of property, though at first view they may seem to indicate a different construction, yet are rather to be referred to the necessities which war imposes, when the safety of the state is the supreme law, and justice is silenced by the din of arms.

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

In the present case, however, these questions are unimportant, if it shall appear that by the Railroad charter a method is provided for ascertaining and making compensation for property necessary for the road. Row, this I think clear, by the reference in the charter itself, to the general railroad law, as the law of the company. According to that law, they are bound to proceed to condemn the lands necessary for their road. If the Canal Company are the *81 •owners of the soil where the road passes their line of improvement, the Railroad Company should have it condemned as their property; if they are not the owners of the soil, they should have proceeded condemn the property as Mr. Wickham’s property, have purchased his rights by private contract; and in either case, they would hold subject to the easement of the canal, precisely as he held it. The record does not shew how this matter is, nor is it material to the question we are considering; for the charter having duly provided for compensation, it is not void, although the company may have failed to pursue its provisions. That is a matter to which I shall have occasion presently to refer.

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

We have, then, it is conceived, established these *82 two points: that the Railroad charter is not unconstitutional, and that it authorizes the company to cross the line of the canal. Upon what terms, is the next qlies^on pe solved ? And here, there is some diffieulty in ascertaining from the record what is the state of the fact. It does not appear whether any proceedings have been instituted by the company, or the proprietor, for the condemnation of the land and the assessment of damages. Certain it is, that the Railroad Company cannot pass the canal, without being responsible to the owner of the land for the damages done by the condemnation. In what manner the Canal Company may be entitled to compensation for any injury they may sustain, and to what extent, it" would be premature in this case to inquire. Satisfied', as I am from the record, that they are not the owners-of the soil, either legally or equitably, and that they have only title to an easement, I have no doubt that the land should be condemned as Mr. Wickham’s. I am also of opinion, that when so condemned,.the title-to the land will vest in the Railroad Company, subject■ to the easement; and that they will be bound, as Mr. Wickham was bound, not to obstruct or impair its enjoyment. Whether it would be practicable for them, if they so desired, to extinguish that easement by any proceeding now known to the law, it is not necessary in the present state of things to inquire. Our only concern is to know, whether they have undertaken to ■ exercise their right of passing the canal prematurely.. It seemed to be considered by the counsel, that the condemnation must precede the execution of the work.. This is, I conceive, a misconception of the law. The company have a right to proceed with their work before condemnation; and, indeed, there is no absolute obligation on them, to institute the process for assessing the damages to the land, since in case of their default the owner himself may do so. It is,, therefore,, *83 clear that the work is not to be suspended until the damages are assessed and paid; and this is rendered more undeniable by the 13th section, which in connexion with the previous sections, provides, that the mean time” (that is, while the process of valuation . . ... . . .. ....... or assessment is going on) “no injunction shall be awarded to stay the proceedings of the company in the prosecution of their works, unless &c.” It was then necessary, that the damages should have been assessed and paid before the company proceeded to. the erection of their bridges.

"With these views of the law of this ease, I cannot perceive that the Railroad Company have, in any respect, “transcended the authority given by the law,”' in proceeding to erect their bridges over the line of' the canal. Nor can I perceive, that they have done,, or are about to do, any injury to the Canal Company which cannot be adequately compensated in damages. On the contrary, it is palpable, that (apart from the competition, which we have already shewn the Canal Company cannot complain of) there is no injury done them whatever. The railroad bridges are much higher above the water than their own bridges. Every load which can pass the canal bridges will be wholly unobstructed by the railroad bridges, while boats that can pass the latter would be obstructed by the former. It is, therefore, not true that any injury whatever, and much less an irreparable injury, has been done, or is likely to ensue. The interference by injunction was, therefore, improvident, and in direct conflict with the statute, and with the established principles of a Court of Equity. I am, therefore, of opinion, wholly to dissolve it, and to dismiss the bill. It will be at its own peril if the Railroad Company so erects its bridges as to obstruct or impede the easement of the canal. It has not yet done so. When it does, it will be time enough to invoke the extraordinary powers of a Court *84 of Equity, by shewing the danger of actual and irreparable injury. It will then also be time enough to decide how far the Canal Company have power to ex-^en(j easement, either laterally, or by raising their bridges, and removing as a nuisance that which is erected by the Railroad Company. Those inquiries, at this time, appear unnecessary and premature.

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

The other judges concurred.

Decree, that the Circuit Superior Court ought TO HAVE DISSOLVED THE INJUNCTION AS IMPROVIDENTLY AWARDED, WITHOUT IMPOSING ANY RESTRICTION AS TO THE HEIGHT OF THE FRIDGES, AND THAT THE SAID ORDER IS ERRONEOUS.

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Al Tech Specialty Steel Corporation v. Allegheny International Credit Corporation104 F.3d 601 (3d Cir. 1997)

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