Bridge v. Bridge, 7 N.H. 35 (N.H.)

PakkeR J.

delivered the opinion of the court. The answer in this case closes with a denial of the jurisdiction of this court as a court of chancery, because the plaintiffs, if they sustain any injury may have adequate remedy at the common law.

It would, perhaps, be the better practice to consider any objection of this character before a hearing upon the merits, even if it is not taken by a formal demurrer. 2 Johns. C. R. 369, Underhill vs. Van Cortlandt; 2 Caines’ Cas. in Error 40, 56, Ludlow vs. Simond.

The counsel, however, have placed no great reliance upon this exception, and it is very clear that it cannot be maintained.

The bill alleges that the defendants are about to erect a bridge at a certain place, within the limits of an exclusive grant to the plaintiffs — that they attempt to do this under a pretended right of an authority from the legislature of this State — that this is in violation of a prior grant from the State to the plaintiffs — that no compensation has been provided for them — that the erection of such bridge will be a great injury to them — and that they have no remedy at the common law to prevent such wrong.

If this be so, it must be apparent that the erection of a bridge by the defendants will operate as a great injustice upon the plaintiffs, and the case would be within the express power-given to this court, by statute, to grant writs of injunction whenever the same shall be necessary to prevent injustice.

If the defendants have no right, and proceed to erect a bridge, the plaintiffs may be without any adequate remedy ;

for upon a judgment at common law, for damages, against the New-Hampshire Bridge corporation, all the corporate property, being perhaps the bridge so erected, might be wholly insufficient to indemnify the plaintiffs for the invasion of their rights. The bridge might be to them useless, and of no value. The individuals concerned in its erection might be able to respond, and still the remedy be inadequate, as it might be difficult to ascertain the measure of the injury sustained.

An injunction is the appropriate remedy, if the right is clear. 1 Ves. sen'r 188, Hughes vs. Trustees of Morden College; 1 Johns. C. R. 611, Croton Turnpike Company vs. Ryder; 2 ditto 162, Gardner vs. Village of Newburgh; 5 ditto 101, Newburgh Turnpike Company vs. Miller; 7 ditto 334, Jerome vs. Ross; 9 Johns. R. 507, Livingston vs. Van Ingen. The answer admits, that the defendants are about to erect a bridge at the place specified, and claims a right so to do under the authority of the legislature ; and we must therefore proceed to enquire whether its erection will infringe the rights of the plaintiffs, and be the means of such injustice to them as should be prevented by a writ of injunction.

It is objected, on the part of the defendants, that the charter of the plaintiffs does not give them such limits that the erection of the proposed bridge, by the defendants, will interfere with their exclusive rights.

It is said that by the terms of their charter the plaintiffs had no right to build a bridge any where except between Bloody point and Furbur’s ferry, and that, taking the title of the act together with the sections cited, all the exclusive right of the plaintiffs, if they have any beyond the place occupied by their bridge, must be limited to Bloody point on the one hand, and Furbur’s ferry on the other — that if they have any claim of right above Furbur’s ferry, it can be only a right to preclude others from building a bridge, not to build one themselves-^ — that this cannot be a franchise — and that their exclusive limits cannot extend beyond the limits

in which they might erect a bridge. And if this be the true construction of the plaintiffs’ rights, the defendants allege that they can accomplish all they are attempting to do without any violation of the rights or franchises of the plaintiffs.

But we cannot restrict the grant to the plaintiffs by the title and preamble of the act. If we find within the body of the act an express and unequivocal grant of powers and rights not mentioned in the title or preamble, we cannot restrict the grant of those rights merely because the terms of such grant are more extensive than the terms of the title and preamble. *7 Pick.* 455.

If the title had been an act to incorporate certain persons for the purpose of building a bridge at Fox point, the place where the plaintiffs erected their bridge, and the act itself granted to the corporation in explicit terms the right to build between Walton’s point and Nanny’s island, the grant could not be construed to be of the right mentioned in the title alone.

The sixth section of the plaintiffs’ charter gave them, in terms, the exclusive right of building and maintaining a bridge across the Piscataqua river, any where between Walton’s point and Nanny’s island; and there is, in this section, no reference to any other part of the charter by which this grant of power and right is to be restricted.

On the supposition that by the charter the plaintiffs were obliged to erect their bridge within the limits between Bloody point and Fur bur’s ferry, as specified in the third section, we see no reason, if the legislature may grant exclusive rights, to doubt their power to grant to the plaintiffs exclusive limits, connected with the grant of their bridge, even beyond the limits in which their bridge must be erected.

Such right of exclusion might be essentially necessary to ensure the erection and maintenance of the bridge, notwithstanding the bridge itself might be required to be erected

'within smaller limits, or at a definite place — and if so it was competent for the legislature to make such a grant, attached to the grant of the bridge, if they might lawfully grant any exclusive limits.

It might perhaps admit of question whether the sixth section did not give the plaintiffs power to erect their bridge any where within the exclusive limits designated in that section; but this is not material to the present case.

It is farther contended, that the plaintiffs’ charter gave them only the exclusive right of selecting a site for their bridge within certain limits, and that having made their selection and erected their bridge, the place of erection becomes thenceforth the only exclusive right which they can claim under their charter.

But we cannot adopt this construction of the grant, not only because such are not the terms in which the grant is made, but because it is apparent that such construction would defeat the object which must have been in contemplation in procuring and making the grant of an exclusive right.

The charter of the plaintiffs, then, confers upon them by its terms the exclusive right of building and maintaining a bridge between Walton’s point and Nanny’s island; and it is conceded that these limits cover the whole ground upon which the defendants claim a right to erect their bridge.

The next question is, whether this was a constitutional and valid grant.

The answer alleges, that at the time of this grant, one Levi Furbur had a right of ferry within those limits — that no compensation was provided for Furbur, and that the grant is unconstitutional and void.

That Furbur was in the occupation of a ferry at the time of the grant to the plaintiffs, which was within the exclusive limits granted to them, seems to be conceded. What his right was, or how it originated, does not appear.

There is nothing to show that his ferry was not set up by him without any authority.

On the supposition that he occupied under a grant, it is not to be inferred of course that the grant extended beyond the place he occupied.

If Furbur • had had the grant of a ferry, generally, we should pause before holding that the legislature could not grant a bridge, or even another ferry, so near as to be consequentially injurious to him. Upon this subject different opinions have been entertained ; and it may well be questioned whether the grantee of a ferry, or of a right to erect and maintain a bridge at a particular place, without any terms of exclusion in the grant, can set up that right in avoidance of any other grant which is not directly injurious in its operation, but injurious merely in its remote consequences by diverting travel and tolls. 1 Pick. 432, Callender vs. Marsh.

It would seem to have been the understanding, in this State at least, that if the party intended to secure himself from competition of this character he must obtain a provision to that effect in his grant; and if no such provision is found, it may well be held that the grant was taken with a reliance on the wisdom and discretion of the legislature to protect the grantee from injurious competition, by refusing to authorize any other enterprise of a similar character in the immediate vicinity, unless required by an imperious necessity ; and with an assent, on the part of the grantee, that whenever the legislature, should deem it expedient, they might make other grants, remotely affecting the former, so long as the right and privilege conferred by the terms of the grant were not infringed.

But it is not important to settle that question here.

If it was shown that Furbur had an exclusive right of ferry within certain limits, we are not prepared to hold that the legislature might not lawfully grant a right to erect a bridge wdthin those limits, if the locus in quo occupied by

him for his ferry was not taken, and he was left to the enjoyment of an exclusive right of ferry as before.

The erection of a bridge near his ferry might be consequentially injurious to him. : It might deprive him of the profits of his ferry; and yet if his right of ferry was not infringed, how could the act be held to be unconstitutional ?

The grant of an exclusive right of ferry is certainly not an exclusive right of all modes of transportation and conveyance.

Whatever Furbur’s rights may have been, he does not appear to have complained of the erection of the plaintiffs’ bridge ; and whether they purchased his consent, or he abandoned his ferry without, the defendants are in no way connected with him, nor would the State, by an extinguishment of his right of ferry, gain a right to grant a bridge within the exclusive limits for a bridge already granted to the plaintiffs ; although the legislature might perhaps for that reason grant another ferry at the same place.

It is further contended, that the legislature which granted the charter of the plaintiffs’ had no power to grant such an exclusive right, and that the act, therefore, so far as it purports to give exclusive limits, is void.

By the constitution of this State, full power and authority are given and granted to the general court “ from time to “ time to make, ordain and establish all manner of whole- “ some and reasonable orders, laws, statutes, ordinances, “ directions and instructions, either with penalties or without, “ so as the same be not repugnant or contrary to this consti- “ tution, as they may judge for the benefit and welfare of “ the State,” &c. N. H. Latos 7.

There is certainly no express provision of the constitution authorizing, in so many words, a grant of this character, It is equally certain that there is no express prohibition of such an act. “When,” says Chief Justice Kent, “the “ people erect a single entire government they grant at once “ all the rights of sovereignty. The powers granted are

“indefinite, and incapable of enumeration. Everything is “granted that is not expressly reserved in the constitutional “charter, or necessarily retained as inherent in the people.” —9 Johns. 574, Livingston vs. Van Ingen.

It will not be .necessary to resort to any principle so broad as this to show that the legislature may make a grant of this character.

The constitution no where gives the legislature, in terms, the power to make a grant of land, or a charter of incorporation, or to confer a right to make bridges, turnpikes or canals ; but such power has always been exercised, and no one doubts the right to make such grants. 6 Cranch 128, Fletcher vs. Peck.

If this is conceded, the legislature may certainly make exclusive grants.

They may grant land in fee simple, and the grantee will have an exclusive right. “ Cujus est solum ejus est usque ad cmlum, et ad inferos” — and he has this to him, and his heirs and assigns forever. Nothing can well be imagined more exclusive than this.

They may grant a bridge across a navigable river. No one can justify such erection without a grant. But such grant is necessarily exclusive to a certain extent. So far as the structure itself extends, so far the right must be exclusive. No one will contend that a subsequent legislature could regard such grant as void, and for that reason authorize the building of another upon the same foundation, or one which should occupy a part of the space already in the possession of the grantee.

The legislature, then, has power to grant a right to build and maintain a bridge; and the right will be exclusive to the extent occupied by the bridge, which may be of greater or less dimensions, according to the grant.

What limits the power of the legislature to the positions occupied by the wood and stone used in the construction of the work ?

H tlic legislature may grant a right which will be exclusive to the extent of forty feet, or sixty feet, at what number of feet or rods shall we fix the limits of the power, so that all beyond is void ?

If it be necessary, in order to effect the.object, that the grant should be exclusive to the usual width of a bridge, it may be equally necessary to the accomplishment of the purpose, that the limits should be still more extensive. It may be necessary to lay the foundations much broader. It may be necessary to erect works above and below for the preservation of the structure.

If the legislature may grant the right to build the bridge, and may grant exclusive power over space sufficient for its erection, because otherwise the grant could not be carried into effect; why may they not grant such power over space sufficient in other respects to ensure its erection ? Why may they not make a grant of such extent that the grantees will think the prospect of remuneration sufficient to induce them to undertake the work ?

Again, the legislature may undoubtedly grant with reference to the preservation of the bridge. Such is one of the objects in granting a toll. If they may grant powers and rights with a view to preserve it from floods, by the erection of works of security above or below ; and if they may grant tolls in order to preserve it from decay, why may they not extend the exclusive right so far that these tolls will furnish adequate means for keeping it in repair ?

It is not our province to judge how extensive the grant to the plaintiffs ought to have been. , It was said in the argument, that the necessity of the act authorizing the defendants to erect a bridge, is conclusively proved by the grant itself — that the court are not to enquire into that necessity. And so of the plaintiffs’ exclusive limits ; — the necessity of their extent in order to effect the object, was for the consideration of the legislature and not for us.

Charters with exclusive privileges have been repeatedly granted, here and elsewhere. 9 Wheat. 97, note a. They have been deemed necessary to the promotion of enterprises of public utility, and have in many instances operated greatly to the convenience of the community, as the means of accomplishing public improvements which would not otherwise have been undertaken, or must have been delayed to a much later period.

The right to make such exclusive grants has been supported by some of the most eminent counsel in the United States, and has not been contested by others who would not have failed to deny it had it been deemed of a questionable character. It has received the sanction of some of the most learned tribunals in the Union, and we -see no reason to doubt the soundness of the principle. 7 Pick. 393, 440, 448, 456, 465, 473, 476, 492, 519, Proprietors of Charles River Bridge vs. Warren Bridge; 9 Johns. 525, 551, 559, 563, 573, 584, Livingston vs. Van Ingen; 4 Johns. C. R. 150, Ogden vs. Gibbons; 17 Johns. 488; 9 Wheat. 74, 143, Gibbons vs. Ogden.

It has not been contended that there is any thing in the provision of the constitution of the United States authorizing Congress to regulate commerce, or in any act of Congress which militates, in any degree, with the power of granting an exclusive right of building a bridge within the territory of a State, and there seems to be no ground for any such supposition. 9 Wheat. 19, 203, 235; 3 Cowen 733, 754, North River Steam Boat Co. vs. Livingston; 11 Wendell 590, The People vs. Babcock; 2 Peters's S. C. R. 245.

It has been urged in the argument, that if the legislature may grant exclusive rights of this character, a legislature opposed to manufactures, to internal improvements, or to banking, might grant a small cotton factory, with the exclusive right of manufacturing within the State — or a short

rail-road — or a single bank — with exclusive privileges, and the public thus suffer great injury.

It will be in time to consider whether grants of such a character are within the constitutional exercise of the legislative power, and whether they may or may not be avoided, when a case is presented to us in which it is apparent that a fraud must have been practised in obtaining the grant, or the circumstances under which it was made show that it was merely colourable, and intended to effect other purposes than those which appear upon the face of it.

There is nothing in this case to lead to a supposition that this grant was not fairly obtained — that the public good did not require a grant of the powers and rights contained in the charter — or that the consideration on the part of the grantees, in providing a great public highway for the convenience of the citizens, was not fully adequate to all the rights and privileges they received. It appears that the grantees did not overreach the legislature. The enterprise was one of great public utility ; and while the community have had all the benefit which was contemplated from the grant, the grantees, it is not denied, were subjected to great loss — the expenditure far exceeding the estimates.

Cases may exist where, owing to a change in the population, business, and intercourse of the country, the public interest may require the opening of new avenues within the limits of such exclusive grants, and in which the individual right should be made subservient to the public use ; but this may be done without a violation of the public faith. Whatever the public require they aré able to pay for — and it is not for the public interest that the grants of the government should be held good so long only as there is no desire to interfere with them — good while they are onerous to the grantee, and invalid when others may wish to participate in the benefits derived from them.

It is argued that the only pretended right of the plaintiffs is a promise not to give liberty to others to build a bridge ;

but we do not view it in that light. The charter of the plaintiffs contains a grant of a franchise^ — an incorporeal hereditament. The grant of an exclusive right is part of that franchise — granted in connexion with their right to build a bridge, and in aid of that right — holden with that right — capable of being used by the erection of a bridge elsewhere than in its present location — may be attached with the rest of the franchise, and taken on execution — and under it the plaintiffs may grant a license to build a bridge within those limits to any one who has obtained a grant of authority from the legislature to erect such bridge.

The plaintiffs have a property in their exclusive grant, and it is not a mere stipulation on the part of the legislature that no other liberty to erect a bridge shall be granted.

The plaintiffs then having an exclusive grant to the extent set forth in their bill, the next enquiry is whether the defendants, by virtue of their charter, can lawfully proceed to erect another bridge within those limits ?

It is urged, that if the charter of the plaintiffs is a contract, it is subject to the implied condition of yielding to the public necessity and convenience — that if their grant be property, it may, like other property, be taken for public use : and that although no compensation is provided here, that does not make the grant to the defendants void, but the plaintiffs may have an action.

The charter of the defendants is not unconstitutional, or void. Of itself it impairs no rights. As a grant to the individuals named in it to be a corporation, it is conceded to be good. As against the public, it contains a valid grant of a right to build a bridge and to take tolls ; and if the defendants can agree with the plaintiffs, we see no objection to their proceeding under their charter, and enjoying all the privileges it purports to confer.

If the charter itself was an unconstitutional act, it would be wholly void, and the defendants could not rightfully

build a bridge, and demand tolls, on purchasing of the plaintiffs a right or license to erect one within their limits, which it is admitted they might do.

But can they lawfully proceed to erect such bridge without the consent of the plaintiffs ?

We are of opinion that if the charter of the defendants had made proper provision for a compensation to the plaintiffs, the legislature might have authorized the building of another bridge within their exclusive limits, even without their consent.

In such case the grant itself would furnish plenary evidence that the public interest required the taking of private property for public use ; and we see no objection to taking a part of the plaintiffs’ franchise.

That franchise, as we have said, is property. “No part “of a man’s property shall be taken from him or applied to “ public uses, without his own consent, or that of the repre“sentative body of the people.” N. H. Bill of Rights, Art. 12.

This has always been understood necessarily to include, as a matter of right, and as one of the first principles of justice, the further limitation, that in case his property is taken without his consent, due compensation must be provided. 1 Black. Com. 139; 2 Johns. C. R. 166, Gardner vs. Village of Newburgh, and authorities there cited.

It is not supposed here that even the consent of the representative body of the people could give authority to take the property of individual citizens for highways, bridges, ferries, and other works of internal improvement, without the assent of the owner, and without any indemnity provided by law. Such a power would be essentially tyrannical, and in contravention of other articles in the Bill of Rights.

This defence is not attempted to be supported upon any such principle.

But if adequate compensation is provided, in a proper manner, it is admitted that private property may be taken

without the special consent oí the owner in each particular case.

No distinction is made in the constitution between property of one description and that of another ; and if a franchise-is property, we do not discover upon what ground it claims an exemption from the same liabilities to which other property is subjected.

If the government had been the owner of tho land along the Piscataipia river, and had granted to the plaintiffs a tract of land co-extensivo with their exclusive limits, the legislature might, afterwards, have authorized the taking of a portion of the land so granted — making provision for compensation to the grantee — notwithstanding the exclusive nature of the grant.

If, instead of a corporeal hereditament, the legislature have granted an incorporeal hereditament of such a nature that it may afterwards be necessary that the property, or a part of it, be taken for public use, why is not that subjected to the public servitude, and in the same manner ? There seems to he no substantial difference between the two which requires the adoption of a different rule in this respect. ,

Had the legislature granted merely the right to build and maintain a bridge from point to point3 and take tolls, and the public necessities afterwards required that a portion or even the whole of that bridge should be taken for other public purposes, is there any question that this might have been done, if due compensation was provided for the owners ? We think not. *7 Pick.* 459, 500. Yet, as has been before stated, the grantees would most unquestionably have had an exclusive right in their bridge and tolls. Where then is the difference between a grant exclusive in its effect, and one exclusive in its terms ? The latter is no more than exclusive.

If the grant had been of the “exclusive” right of building a bridge from point to point, without any extended limits, the property of the bridge when built would be no

more exclusive, nor the right more exclusive than it would be if the grant had been made without the use of the term “ exclusive and if the property is subject to be taken for public use in the one case it must be so in the other. If then extended limits of exclusion are added, how does that change the nature of the case ?

If the grant amounts to an extinguishment of the right of the legislature to bestow the same identical franchise upon another corporate body, and implies a contract not to reassert the right to grant the franchise to another, or to impair it, (4 Wheat. 658, 682.) there is the same extin-guishment of the right of the grantor, and the same implied contract not to reassert that right in a grant of lands. 6 Cranch 137. The grantee of a fee simple takes, under a contract, an absolute estate in some respects, but subject to an implied condition or limitation, by which the lands may afterwards be taken for public use — for turnpikes, rail-roads, canals, bridges, &c., whenever the public necessities demand it; and “a grant of franchises is noj in point of principle distinguishable from a grant of any other -property.” 4 Wheat. 684.

The grant under which the plaintiffs took this property is admitted to be a contract, and that contract is inviolable. The legislature cannot annul that contract, or in any way impair its obligation. The plaintiffs have taken and received all the legislature contracted to give. It is an executed contract, (4 Wheat. 690,) and the plaintiffs entitled to be protected in the enjoyment of the property acquired under it, to as great an extent as they are protected in the enjoyment of any other "species of property.

It does not impair that contract to hold that the property acquired under it may he taken for public use — that it is liable to be subjected to the public servitude and the public burthens. 6 Cranch 145, Fletcher vs. Peck; 8 Wheat. 89, 101, Green vs. Biddle; 4 Peters S. C. R. 563, Providence Bank vs. Billings.

The grant contains no covenant, in terms, that the State will never grant another bridge within those limits, nor do we think that any such covenant is to be implied, and of course no obligation to that effect is imposed. 4 Wheat. 197, Sturgis vs. Crowninshield; 3 Peters 289, Jackson vs. Lamphire.

The terms and object of the grant are satisfied without any such stipulation. The grantees have all the State professed to grant — the exclusive right. They have a property in this, and no part of it can be taken from them except for public use, and upon adequate compensation being made.

If a grant of franchises is like other grants of property, why should a covenant be implied extending the right of property in a franchise of this character beyond the rights of the holders of other property, and enabling the grantees to resist all public improvements, and deny all public wants entirely, or until such compensation as they please to demand shall be made to them ?

When the legislature shall have granted land, with a covenant that no highway, canal or rail-road shall ever be made through it — or a bridge, with a stipulation that no other bridge shall ever be erected within a certain distance, it .may deserve enquiry whether such contract is within the scope of its constitutional power ? — whether the right to provide for the public necessities, and to take property for public use whenever those necessities require it, making therefor an adequate compensation, are not inherent rights of sovereignty which no legislature can part with, or control, by any stipulation, so as to bind the people, or their successors who represent the people ?

How far the case, New-Jersey vs. Wilson, 7 Cranch 164, may countenance the supposition that the legislature may even make a contract of that character, need not now be considered. It may be remarked that the question, whether the legislature had power to make a contract which Would bind the State not to tax the lands after they came into

the possession of the citizens, does not seem to have been brought into discussion. But it must have been involved in the decision, the enquiry being whether the act of exemption was a contract.

Whether upon reconsideration the principle of that case can be supported, and if it may, whether it is to be extended beyond the decision itself, we do not enquire. 4 Peters' S. C. R. 561.

We conclude, then, that the legislature might lawfully authorize the taking of a portion of the plaintiffs’ franchise for public use, making a just compensation; but have they done so in the present instance ?

It is not pretended that the defendants’ charter provides lor any indemnity to the Piscataqua Bridge corporation ; and the position that the defendants may take their property because the plaintiffs will have a right of action, cannot be supported.

Had the plaintiffs seen fit to suffer their property to be taken, and sought redress for the injury by action, it might have been sustained ; but this is not the compensation intended by law when property is taken for public use. 2 Johns. C. R. 162, Gardner vs. The Village of Newburgh; 7 Mass. 393, Perry vs. Wilson; 1 Pick. 430, Callender vs. Marsh; 6 ditto 404, Proprietors of Charles River Bridge vs. Warren Bridge.

It is not by way of damages to be obtained in an action for an injury done that the party is entitled to be indemnified for property thus lawfully taken.

There is a dictum in Stevens vs. The Proprietors of Middlesex Canal, 12 Mass. R. 408, implying that the act of taking may be lawful, and yet an action sustained for the tnjury, but this evidently had not been fully considered. 1 Pick. 430, 435. Such a proposition may be said to be felo de se.

The plaintiffs have a grant of certain exclusive limits.

The defendants claim a. right to erect a bridge within those limits, upon the ground that their charter givey them a right to erect such bridge, and that the plaintiffs may have compensation for the injury done to them by a suit at law. But if the defendants have a right to erect a bridge, what wrong or injury is done ? Lf the plaintiffs might have an action on the case for the injury, which was the form in Chadwick vs. The Proprietors of Haverhill Bridge, cited in support of the position, that negatives the idea of a right. It presupposes an interference contrary to law. The legislature cannot empower any one to do a wrong — and a right to take by wrong would be a solecism. So far as the defendants may act lawfully under their charter, they will not subject themselves to an action for an injury. So far as they cannot lawfully act, they ought to refrain from acting.

Whenever lawful authority is given to take property for public use, the act of taking is justifiable. There is no injury to the rights of the party, and no action as for a tort can accrue. Recompense is made for what is legally taken, and the party cannot eomplain that a wrong is done, for his property has been taken according to the laws of the land.

It might have been sufficient, in this case, to have said that the charter of the defendants does not purport to give them any right to interfere with the property of the plaintiffs without their consent. It authorizes them to purchase real estate, and hold it in fee simple. It does not authorize the taking of any property whatever, except by agreement with the owners ; and there is of course no evidence of any public necessity requiring that the property of others should be taken, except by their own consent.

The defendants, therefore, in attempting to build their bridge without the consent of the plaintiffs, cannot for this reason rely upon their charter; and we might have waived any discussion of some of the questions raised in the case ; but the interest of these parties, and perhaps of others, ren

dered it expedient for us to consider all the points which have been suggested.

It has been said that equity will not relieve against a statute. The authority cited only goes to establish the position, that equity cannot disregard the provisions of a valid law, and relieve against it. Of this there is no question. It is not pretended that we can restrain the defendants from doing a lawful act.

But if the principle was, that, sitting as a court of equity, we would not decide in this mode against the constitutionality or validity of a statute or grant, which we find no where sustained, there is nothing in the facts in this case that would bring us in conflict with such a principle.

The question is, whether we shall enjoin the defendants from doing an act under colour of their charter, which it does not authorize them to do ? and we are all of opinion that the right being clear, the relief sought by the bill must be granted, and an injunction issued to restrain the defendants from building a bridge at any place within the limits of the exclusive grant to the plaintiffs, without their consent.