BOSTON AND LOWELL RAILROAD CORPORATION vs. SALEM AND LOWELL RAILROAD COMPANY & others.

BILL IN EQUITY, filed on the 14th day of June 1852, by the Boston and Lowell Railroad Corporation, against the Salem and Lowell Railroad Company, the Boston and Maine Railroad, and the Lowell and Lawrence Railroad Company.

The bill alleged that by an act passed on the 5th of June 1830, (St. 1830, c. 4,) a charter of incorporation was granted to the plaintiffs by the legislature of this commonwealth, (which was set forth at length in the bill,) and by the first section of which John F. Loring and others named, their associates, successors and assigns, are made a body corporate, under the name of the Boston and Lowell Railroad Corporation, with power to sue and be sued, and have a common seal; and are "vested with all the powers, privileges and immunities, which are or may be necessary to carry into effect the purposes and objects of this act, as hereinafter set forth. And the said corporation are hereby authorized and empowered to locate, construct and finally complete a railroad, at or near the city of Boston, and thence to Lowell in the county of Middlesex, in such manner and form as they shall deem to be most expedient; and for this

Page 3

purpose the said corporation are authorized to lay out their road, at least four rods wide through the whole length; and for the purpose of cuttings, embankments, and stone and gravel, may take as much more land as may be necessary for the proper construction and security of said road." Section 2 provides that the capital stock of said corporation shall consist of one thousand shares; and by § 3 the president and directors are authorized to lay assessments to the amount of five hundred dollars on each share. The act also contains the following provisions:

"SECTION 5. Be it further enacted, that a toll be and hereby is granted and established, for the sole benefit of said corporation, upon all passengers and property of all descriptions which may be conveyed or transported upon said road, at such rates per mile as may be agreed upon and established from time to time by the directors of said corporation. The transportation of persons and property, the construction of wheels, the form of cars and carriages, the weight of loads, and all other matters and things in relation to the use of said road, shall be in conformity to such rules, regulations and provisions as the directors shall from time to time prescribe and direct, and said road may be used by any person who shall comply with such rules and regulations: Provided, however, that if, at the expiration of four years from and after the completion of said road, the net income or receipts from tolls and other profits, taking the four years aforesaid as the basis of calculation, shall have amounted to more than ten per cent. per annum upon the cost of the road, the legislature may take measures to alter and reduce the rate of tolls and other profits in such manner as to take off the overplus for the next four years, calculating the amount of transportation upon the road to be the same as the four preceding years; and at the expiration of every four years thereafter the same proceedings may be had."

"SECTION 6. Be it further enacted, that the directors of said corporation for the time being are hereby authorized to erect toll houses, establish gates, appoint toll gatherers, and demand toll upon the road when completed, and upon such parts thereof

Page 4

as shall be from time to time completed; and they shall, from year to year, make a report to the legislature of their acts and doings, receipts and expenditures, under the provisions of this act."

"SECTION 12. Be it further enacted, that no other railroad than the one hereby granted shall, within thirty years from and after the passing of this act, be authorized to be made, leading from Boston, Charlestown or Cambridge to Lowell, or from Boston, Charlestown or Cambridge to any place within five miles of the northern termination of the railroad hereby authorized to be made: Provided, that the State may authorize any company to enter with another railroad, at any point of said Boston and Lowell Railroad, paying for the right to use the same, or any part thereof, such a rate of toll as the legislature may from time to time prescribe, and complying with such rules and regulations as may be established by said Boston and Lowell Railroad Corporation, by virtue of the fifth section of this act: Provided, also, that it shall be in the power of the government, at any time during the continuance of the charter hereby granted, after the expiration of ten years from the opening for use of the railroad herein provided to be made, to purchase of the said corporation the said railroad, and all the franchise, property, rights and privileges of the said corporation, on paying therefor the amount expended in making the said railroad, and the expenses of repairs, and all other expenses relating thereto, with interest thereon, at the rate of ten per cent. per annum, deducting all sums received by the corporation from tolls or any other source of profit, and interest, at the rate of ten per cent. per annum thereon, that shall have been received by the stockholders; and after such purchase, the limitation provided in this section shall cease, and be of no effect."

The bill then alleged that said act of incorporation was duly accepted, and the plaintiffs became a corporation, possessed of all the rights, powers and privileges conferred by said charter; that subsequently certain other acts, in addition to said first named act, were passed by the legislature; (copies of which

Page 5

were annexed to the bill) that the same were duly accepted by the plaintiffs, with the exception of the second proviso of the St. of 1836, c. 146; and that thereby a contract, conformable to the terms of said charter, and of the acts thus accepted, was created between the Commonwealth and the plaintiffs.

The acts, copies of which were so annexed to the bill, were the following: St. 1830, c. 79, increasing the plaintiffs' capital stock to twelve hundred shares: St. 1832, c. 87, by the first section of which the government of the Commonwealth, at any time after the expiration of twenty years from the opening for use of the plaintiffs' road, may purchase the road, franchise, &c. of the corporation, on paying all expenses, and such additional sum as, together with the net profits received by them, will be equal to ten per cent. on the original cost: St. 1834, c. 1, by which the capital stock of the corporation is increased to twenty four hundred shares: St. 1836, c. 146, by which their capital stock is further increased 600 shares of $500 each; provided, among other things, that the legislature, after twenty years from the opening of said railroad for use, may purchase the road, franchise, &c. by paying such a sum as, together with the whole sum received by said corporation from tolls and all other sources of profit, will reimburse them the amount of capital paid in, for constructing and keeping in repair said railroad, and other necessary expenses, with a net profit thereon of ten per cent. per annum; "and provided also, that the legislature may, at all times, exercise the same powers in relation to altering, amending or repealing the said original act of incorporation, or any act in addition thereto, as are contained in the forty-fourth chapter of the revised statutes; except that the tolls shall not be so fixed or altered, as to reduce the net profits arising from all sources to less than ten per cent. per annum; and provided also, that the said last named proviso shall be null and void, unless the same shall be assented to by a majority of the stock holders of said corporation, within thirty days from the time when this act shall take effect:" St. 1838, c. 95, by the first section of which the plaintiffs are authorized to increase their capital stock by an amount not exceeding $300,000, in shares

Page 6

of $500 each: And Sts. 1847, cc. 185, 253, which do not contain any provisions material to the understanding of this case.

The bill then alleged that the plaintiffs, confiding in said acts and the privileges therein granted to them, proceeded at great cost and expense to construct and complete the said railroad, and had ever since maintained and employed the same for the transportation of persons and property, and had derived there from just and reasonable gains and profits; and had in all respects conformed to the provisions and requirements of said acts, which by them were to be kept and performed; and were consequently entitled to enjoy the privileges and receive the tolls in said acts granted to them, and especially to enjoy the privileges granted in the twelfth section of their said charter, namely, that no other railroad should, within thirty years from and after the granting of their said charter, be authorized to be made, leading from Boston or Charlestown or Cambridge to Lowell, or from either of said places to any place within five miles of the northern termination of their said road; and also to enjoy the right of conveying and transporting persons and property by railroad from Boston and Charlestown to Lowell, and from Lowell to Boston and Charlestown, without hindrance, competition or interruption from any other corporation or corporations, authorized to own a railroad between other places, by making use of their railroads, or portions of their lines of railroad, to establish a nearly parallel railroad communication from Lowell to Boston or Charlestown, and from Boston or Charlestown to Lowell, and with a terminus in Lowell, or within five miles of the terminus of the plaintiffs' road in Lowell.

The bill then alleged that by St. 1845, c. 159, which was duly accepted by the Boston and Maine Railroad and the Boston and Maine Railroad Extension Company, said two corporations, previously established by the laws of this commonwealth, were united, and became one corporation, under the name of the Boston and Maine Railroad, and the owners and proprietors of the railroad known as the Boston and Maine Railroad, constructed and leading from Boston into the State of Maine

Page 7

and running through the town of Wilmington, and having its southern terminus in Boston: That by St. 1846, c. 157, certain persons were made a corporation by the name of the Lowell and Andover Railroad Company, with powers to construct a railroad from Lowell to a point in or near Andover, and to enter with their road upon a part of the Boston and Lowell Railroad in Lowell, and use the same; that said act was duly accepted and said road built and constructed by said corporation from Lowell to Andover; and that the terminus of said road in Lowell was constructed within half a mile of the northern termination of the plaintiffs' road; and that by St. 1848, c. 14, which was accepted by said corporation, it was provided that it should take and be known by the name of the Lowell and Lawrence Railroad Company: That by St. 1848, c. 223, certain persons were made a corporation by the name of the Salem and Lowell Railroad Company; that said act was duly accepted, and said corporation constructed their railroad from a point at or near Salem to a point on said Lowell and Lawrence Railroad, in the town of Tewksbury, where they effected a junction of their said road with the Lowell and Lawrence Railroad, and used the track of the Lowell and Lawrence Railroad Company to their terminus in Lowell, and in so doing constructed their railroad through the town of Wilmington, and there intersected the Boston and Maine Railroad. And copies of these acts were annexed to the bill.

The bill then alleged that by means of the said junction of the road of the Lowell and Lawrence Railroad Company with the road of the Salem and Lowell Railroad Company at Tewksbury, and by the intersection of the said last named road with the road of the Boston and Maine Railroad at Wilmington, the rail and other material of a line of railroad communication, nearly parallel with the plaintiffs' road, was created between Lowell and Boston, through Charlestown, only about one mile and six tenths of a mile longer than the plaintiffs' road, and at no point more than three miles and one third of a mile distant therefrom, having one terminus in Lowell within half a mile of the northern terminus of the plaintiffs' road, and a station house

Page 8

for passengers in Charlestown, and the southern terminus in Boston a half a mile nearer to the centre of business in Boston than the southern terminus of the plaintiffs' road, by which line passengers and property could be conveyed and transported from Lowell to Charlestown or Boston, and from Boston or Charlestown to Lowell. But the plaintiffs well hoped that no such use of said roads, or portions thereof, would be made or suffered by the defendant corporations, and that the plaintiffs would be permitted peaceably, without interruption, molestation or interference, to have and enjoy the profit, benefit and advantage secured and intended to be secured to them by their act of incorporation, and the acts in addition thereto, of transporting passengers and property from Boston to Lowell, and from Charlestown to Lowell, and from Lowell to Boston, and from Lowell to Charlestown, and free from the competition of any other railroad, authorized to be made by the Commonwealth, extending from Boston, Charlestown or Cambridge, to any place within five miles of the northern terminus of the plaintiffs' road; and free from the competition of any other corporation or corporations, authorized by the legislature to run railroads between other places and to intersect and to unite with each other, but making use of their roads, or portions thereof, for establishing a railroad between Boston and Lowell, nearly parallel with the plaintiffs' road, and for transporting passengers from Boston and Charlestown to Lowell, and from Lowell to Boston and Charlestown, on the railroad thus established.

The bill then alleged that the defendants, combining, colluding and confederating together to deprive the plaintiffs of the reasonable gains and profits which they were entitled to receive from the transportation of passengers and property over their road, and to hinder them in the enjoyment of the rights and privileges to which they were entitled by virtue of their said contract with the Commonwealth, and especially under the twelfth section of their charter, did enter into a certain mutual agreement, understanding or arrangement to convey, and cause to be conveyed, passengers and property over portions of their said roads, by means of said junctions and intersections, from

Page 9

Boston and Charlestown to the terminus of the Lowell and Lawrence Railroad in Lowell, and from Lowell to Boston and Charlestown, and by causing cars, and trains of cars, to run over said portions of each of their said roads at such times that passengers could exchange out of the cars of the Salem and Lowell Railroad Company into the cars of the Boston and Maine Railroad, and from the cars of the last mentioned railroad company into the cars of the Salem and Lowell Railroad Company, at said intersection at Wilmington; and in pursuance of said agreement and understanding, did, on or about the 28th of June, 1851, commence transporting, and had ever since continued to transport passengers and property over their said lines of road as aforesaid, from Boston and Charlestown to Lowell and from Lowell to Boston and Charlestown, using therefor the road of the Lowell and Lawrence Railroad Company from its terminus in Lowell to the place of its junction with the road of the Salem and Lowell Railroad Company in Tewksbury, and thence using therefor the road of the last mentioned company to its intersection with the road of the Boston and Maine Railroad in Wilmington, and thence using the said road of the last mentioned corporation; and for the purpose of more effectually injuring and competing with the plaintiffs in the transportation of passengers between said places, the defendants had from time to time, since entering into their said agreement and confederacy, published, and caused to be published, and still continued to publish and advertise the said route between Boston and Lowell, so made and formed as aforesaid by portions of their said roads, as a railroad route between Boston and Lowell, by publishing notices thereof in newspapers printed in said cities of Boston and Lowell, and by posting up printed notifications thereof in public places in said cities and in divers of the station houses on the roads of the defendant corporations; and had advertised and sold, and still continued to advertise and sell tickets for the transportation of passengers between said cities over said portions of their roads, and also season tickets and package tickets for the use of families and firms; and had employed and still did employ agents to divert and

Page 10

dissuade passengers from travelling between said cities upon and over the plaintiffs' road, and to induce them to travel over the said roads of the defendant corporations; and by means of the premises had succeeded in deterring and preventing many persons from using the plaintiffs' road for the purpose of being transported from Boston and Charlestown to Lowell, and from Lowell to Boston and Charlestown, and in depriving the plaintiffs of the gain and profits which would have accrued to them from the transportation of such passengers between said cities over their said road; and that the defendant corporations, not content with the injury they had thus inflicted, and were still continuing to inflict upon the plaintiffs, had recently combined and mutually agreed, and now threatened and intended to transport and convey passengers and property between Boston and Lowell, and Charlestown and Lowell, over said portions of said roads, by means of cars, and trains of cars, to run entirely through without being changed, from the said terminus in one of said cities to the said terminus in the other, and without the necessity of the passengers being removed from one train of cars into another at Wilmington; all of which acts and doings, and threatened acts and doings, were and would be a nuisance to the rights and franchise of the plaintiffs, legally acquired as aforesaid under their said charter and acts in addition thereto.

The bill then alleged the protest of the plaintiffs against said acts done and threatened, a demand on the defendants to desist and to account with the plaintiffs for the gains and fares received for the transportation of passengers and property as aforesaid, and the defendants' refusal, and that the defendants claimed the right of such transportation under their acts of incorporation, and under Sts. 1851, c. 196, and 1852, c. 118; whereas the plaintiffs denied that said acts did or could legally confer upon the defendants any such powers.

The following is a copy of the statute of 1851, c. 196:

"An act to provide additional railroad accommodations for the town of Wilmington and the vicinity.

"SECTION 1. The ninth section of an act approved by the Governor on the sixteenth day of March in the year one

Page 11

thousand eight hundred and forty four, entitled 'An act to establish the Boston and Maine Extension Company,' is hereby repealed.

"SECTION 2. So much of the eighth section of chapter two hundred and twenty three of the laws of the year one thousand eight hundred and forty eight, incorporating the Salem and Lowell Railroad Company, as provides that the cars of the said corporation shall not be permitted to stop for the purpose of receiving or delivering passengers or merchandise, at any point upon their track within one mile of the Boston and Maine Railroad, is hereby repealed.

"SECTION 3. Nothing in this act contained shall be so construed as to authorize the cars of the said Boston and Maine Railroad Company, or of any other corporation or persons, to be drawn from said last mentioned road over the road of the said Salem and Lowell Railroad Company; or the cars of the said Salem and Lowell Railroad Company, or of any other corporation or person, to be drawn from said last mentioned road over the road of the said Boston and Maine Railroad Company."

Section 9 of the act of March 16th 1844, (St. 1844, c. 172,) repealed by the first section of the above act, was in these words: "No depot or stopping place shall be established be tween Andover and Reading, without the consent of the Boston and Lowell Railroad Corporation." And section 8 of St. 1848, c. 223, incorporating the Salem and Lowell Railroad Company, referred to in the second section of the above act, is thus: "Said corporation may cross the track of the Boston and Maine Railroad; but no connection shall ever hereafter be formed between the tracks of said last named railroad corporation and those of the corporation hereby created; nor shall the cars of the corporation hereby created be permitted to stop, for the purpose of receiving or delivering passengers or merchandise, at any point upon their own track, within one mile of the track of said Boston and Maine Railroad; and the supreme judicial court of this commonwealth shall have power to restrain by injunction any attempts which shall be made,

Page 12

directly or indirectly, by the corporation hereby created, or by the Boston and Maine Railroad Corporation, to violate the conditions of this section. All injunctions as aforesaid may be granted by any justice of the supreme judicial court, according to the ordinary course of proceeding in courts of equity."

The other statute relied on by the defendants, (St. 1852, c. 118,) is as follows:

"An act in relation to the Boston and Maine Railroad Company and the Salem and Lowell Railroad Company.

"SECTION 1. The Boston and Maine Railroad Company may enter upon and use the Salem and Lowell Railroad, according to law.

"SECTION 2. The Salem and Lowell Railroad Company may enter upon and use the Boston and Maine Railroad, according to law: Provided, that nothing contained in this act shall be construed to impair the rights of any person or corporation.

"SECTION 3. All acts and parts of acts, inconsistent with this act, are hereby repealed."

The bill then prayed for a discovery and an account, for specific relief by injunction, and for general relief, and for due process.

The three defendant corporations each filed a general demurrer. And the parties afterwards agreed, that the case should be heard and considered by the court, at the argument upon the bill and demurrer, as if a supplemental bill had been filed by the plaintiffs, charging the doing by the defendants of the several acts and things, which they were charged in the original bill with combining, threatening and preparing to do, and a general demurrer filed to such supplemental bill.

This case was argued at Boston in February 1854.

J. Parker & S. H. Phillips, (G. Minot was with them,) for the defendants. I. The only grant of a franchise in the plaintiffs' charter is in § 1. A franchise is a branch of the sovereign prerogative, subsisting in the subject by a grant from the sovereign. 2 Bl. Com. 37. 3 Cruise Dig. tit. 27, § 1. Finch, 164. The provision in § 12 is not a grant of exclusive limits, nor of the exclusive right of railroad transportation within

Page 13

certain defined limits; it is not a grant of a franchise, nor of any kind of property; but merely an executory contract. Charles River Bridge v. Warren Bridge, 7 Pick. 344, and 11 Pet. 420. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 71. Tuckahoe Canal v. Tuckahoe & James River Railroad, 11 Leigh, 70, 71. Dyer v. Tuskaloosa Bridge, 2 Porter, 296. Boston & Lowell Railroad v. Boston & Maine Railroad, 5 Cush. 385. Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 57. Livingston v. Van Ingen, 9 Johns. 507. Gibbons v. Ogden, 9 Wheat. 1. "A grant is a contract executed." Fletcher v. Peck, 6 Cranch, 137. A grant by the State passes nothing by implication. 5 Cruise Dig. (Greenl. ed.) tit. 34, § 11, & note.

II. If the provision in § 12 be regarded merely as a contract, the plaintiffs' bill cannot be sustained. The plaintiffs pray for relief against an alleged nuisance. But a nuisance implies some right of property in the party injured. 3 Bl. Com. 217. Finch, 188. Fitz. N. B. 184. And the provision in § 12 being merely a contract between the Commonwealth and the plaintiffs, the acts done by a third party, under authority from the legislature, subsequently obtained, do not constitute a nuisance.

But assuming that there are grounds upon which, in cases of this nature, a court of equity will interfere, the alleged contract will not support this bill.

1. The contract is void; for the legislature have no right, by making such a contract, to deprive themselves of any of the essential attributes of sovereignty, such as the power to create revenues for public purposes, to provide for the common defence, to provide safe and convenient ways for the public necessity and convenience, to take private property for public uses, and the like. 3 Cruise Dig. (Greenl. ed.) tit. 27, § 29, note. 17 Vin. Ab. Prerogative, M. b. pl. 20. Bract. l. 2, c. 5. Chit. Prerog. 384. Charles River Bridge v. Warren Bridge, 11 Pet. 420. Attorney General v. Richards, 2 Anst. 605. Hale de Jure Maris, 12. Attorney General v. Burridge, 10 Price, 370, 372. Commonwealth v. Alger, 7 Cush. 53. Weston v. Sampson, 8 Cush. 347. Peck v. Lockwood, 5 Day, 22. Gough v. Bell, 1 Zab. 156.

Page 14

Arnold v. Mundy, 1 Halst. 1. Monongahela Navigation Co. v. Coons, 6 W. & S. 107, 112. Shrunk v. Schuylkill Navigation Co. 14 S. & R. 71. Susquehanna Canal v. Wright, 9 W. & S. 9. Rundle v. Delaware & Raritan Canal, 14 How. 92. Callender v. Marsh, 1 Pick. 418. Hollister v. Union Co. 9 Conn. 436. Lansing v. Smith, 8 Cow. 146. Brick Presbyterian Church in New York v. New York, 5 Cow. 538. Goszler v. Georgetown, 6 Wheat. 593. Brewster v. Hough, 10 N. H. 138. Fletcher v. Peck, 6 Cranch 143, by Johnson, J. The true precedents to be sought in England are those which concern the powers of the crown, and not those which concern the powers of parliament; for parliament may change the constitution of England.

2. The defendants not being parties or privies to the original contract, this bill cannot be maintained against them. The provision of § 12 is not a covenant real, which runs with, or is annexed to the thing granted - if indeed any thing can be said to be annexed to a franchise. Keppell v. Bailey, 2 Myl. & K. 517, 535. Duke of Bedford v. British Museum, 2 Myl. & K. 562. 4 Cruise Dig. (Greenl. ed.) tit. 32, c. 26, §§ 23, 24, & note. Spencer's case, 1 Smith Lead. Cas. 22, & Amer. notes. Clark v. Swift, 3 Met. 390.

3. If the Commonwealth is bound by this contract, it is not bound to respond in damages, nor are its agents liable to an injunction, but the remedy against the Commonwealth must be sought in the ordinary mode. The Commonwealth cannot be sued nor enjoined. United States v. McLemore, 4 How. 288. The agents of the Commonwealth cannot be restrained by injunction from constructing a state work within the prohibited limits; the damages thereby occasioned are damnum absque injuria. 1 Pick. 418, 9 Conn. 436, and 8 Cow. 146, above cited. The bill should at least allege an application to the Commonwealth for compensation.

III. Even if the provision in § 12 be regarded as a grant of property, the plaintiffs' bill cannot be sustained.

1. It alleges a mere taking of private property for public uses, under the right of eminent domain. If § 12 is to be treated as a grant of property, it must be considered a grant of the

Page 15

monopoly of all railroad business between two lines extending from points, distant respectively five miles east and west of the northern terminus of the plaintiffs' road, to the extreme outer limits of Charlestown and Cambridge; and any part of this grant may be taken from the plaintiffs for public uses, upon compensation being made. A franchise may be taken for public uses. Boston Water Power Co. v. Boston & Worcester Railroad, 23 Pick. 360. White River Turnpike v. Vermont Central Railroad, 21 Verm. 590. West River Bridge v. Dix, 6 How. 507. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 71. So easements and other rights may be taken. Ellis v. Welch, 6 Mass. 246. Parks v. Boston, 15 Pick. 203. The general laws of the Commonwealth provide ample means for securing compensation, and a jury trial, to owners of private property taken for public uses. Rev. Sts. c. 39, §§ 56, 57; c. 24, §§ 13–38. If the acts of the defendants, securing a continuous line of railroad communication between Boston and Lowell, constitute the "making" of another railroad within the prohibited limits, as contended by the plaintiffs; and the plaintiffs under § 12 acquired any property which is so taken; then, as the defendant corporations, by Rev. Sts. c. 39, § 45, and the provisions of their respective charters, are each made subject to all general legislation, the plaintiffs' damages must be estimated by the county commissioners, under Rev. Sts. c. 39, § 56.

2. The plaintiffs have a distinct and more appropriate remedy, under Sts. 1851, c. 233, § 55, and 1852, c. 312, §§ 42, 86, by which any person whose private right or interest has been injured, or is put in hazard, by the exercise, by any private corporation, or any persons claiming to be a private corporation, of a franchise or privilege not conferred by law, may apply to this court for leave to file an information in the nature of a quo warranto. This case cannot be controlled by the consideration that in the somewhat analogous case of Charles River Bridge v. Warren Bridge, 6 Pick. 376, this court assumed jurisdiction in equity; because the plaintiffs in that case could not have availed themselves of either of the remedies open to the present

Page 16

plaintiffs. A court of full equity powers having once obtained jurisdiction does not lose it when new powers are given to courts of law. 1 Story on Eq. §§ 64 i, 80. Atkinson v. Leonard, 3 Bro. C. C. 218. But this would seem to be otherwise in Massachusetts, for the jurisdiction of this court in equity in any particular case is made by statute to depend on there being no plain, adequate and complete remedy at law. Rev. Sts. c. 81, § 8. Mere diminution in the value of property will not furnish ground for relief in equity. Attorney General v. Nichol, 16 Ves. 338. Earl of Ripon v. Hobart, 3 Myl. & K. 169.

IV. Assuming that the legislature might lawfully make such a contract, or even grant of property, as is asserted to be contained in § 12, the plaintiffs' bill states no violation of any contract or grant. Every grant of a franchise, or in the nature of a franchise, must be construed strictly. Earl of Leicester's case, 3 Dyer, 362 a. Gennings v. Lake, Cro. Car. 169. United States v. Arredondo, 6 Pet. 738, 739, & cases cited. Beaty v. Knowler, 4 Pet. 168. Providence Bank v. Billings, 4 Pet. 514. Charles River Bridge v. Warren Bridge, 11 Pet. 420. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 81. The limitation, imposed upon the future action of the legislature, amounts only, in terms, to a prohibition against authorizing, within thirty years from 1830, any other railroad to be made, leading from Boston, Charlestown or Cambridge, to any place within five miles of the northern terminus of the Boston and Lowell Railroad. No such railroad has been made or authorized. And there is no charge of any such thing in the bill. The bill does not state that the granting of an act of incorporation to either of the defendant corporations was per se a violation of § 12; nor that the granting of a charter to the Salem and Lowell Railroad Company, which completed the chain, was per se such a violation; nor that the connection at Wilmington was per se such a violation. But the only statement is that the use of the roads or portions of the roads of the defendants in connection is illegal, and a violation of § 12. The legislature never covenanted that existing roads should not be used; but merely that no roads

Page 17

within the prohibited limits should be authorized to be made. The plaintiffs' charter seems to contemplate the use of the road by other corporations, paying toll.

C. G. Loring & R. Choate, (J. G. Abbott was with them,) for the plaintiffs. I. The act of the legislature incorporating the plaintiffs, and their acceptance thereof, and acting and investing property under it, created a contract between the Commonwealth and the plaintiffs. Dartmouth College v. Woodward, 4 Wheat. 518. West River Bridge v. Dix, 6 How. 507. Charles River Bridge v. Warren Bridge, 11 Pet. 420, and 7 Pick. 507. Fletcher v. Peck, 6 Cranch, 135. New Jersey v. Wilson, 7 Cranch, 164. Terrett v. Taylor, 9 Cranch, 50. Green v. Biddle, 8 Wheat. 92. Providence Bank v. Billings, 4 Pet. 560, Gordon v. Appeal Tax Court, 3 How. 133. Osborn v. Bank of United States, 9 Wheat. 738. Gardner v. Newburgh, 2 Johns. Ch. 162. Livingston v. Van Ingen, 9 Johns. 585, 589. Cayuga Bridge v. Magee, 6 Wend. 85. Cayuga Bridge v. Stout, 7 Cow. 33. Croton Turnpike v. Ryder, 1 Johns. Ch. 615. Chesapeake & Ohio Canal v. Baltimore & Ohio Railroad, 4 Gill & Johns. 3. Enfield Toll Bridge v. Hartford & New Haven Railroad, 17 Conn. 40. Washington Bridge v. The State, 18 Conn. 53. Hartford Bridge v. East Hartford, 16 Conn. 149. Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35. Wales v. Stetson, 2 Mass. 146.

The plaintiffs' bill is well maintained without the aid of § 12. The legislature having determined that a public exigency existed, requiring a railroad from Boston to Lowell, and having, in the exercise of the power of eminent domain, and in consideration of the plaintiffs' undertaking to make such a road at their own expense, granted a right to the plaintiffs to construct one, have thereby exhausted their power on that subject, and cannot grant another road for a similar servitude. Such grant would be in derogation of the vested rights of the plaintiffs.

And the grant and establishment in § 5 of a toll, for the sole benefit of the plaintiffs, with a power reserved to reduce it to ten per cent. annually on the capital invested, restrains the legislature from directly or indirectly abolishing the toll, or reducing it below ten per cent.

Page 18

But whatever might be the plaintiffs' rights, without § 12, that section amounts to a grant of the exclusive privilege of conveying passengers and freight between Lowell and Boston, &c. and was one which the legislature had a constitutional right to make, that body being the sole judges of its necessity and utility; and this exclusive right, so granted, when accepted by the plaintiffs, became a portion of their property, and entitled to protection like other property. Cases above cited. Const. of Mass. c. 1, art. 4. Richmond, Fredericksburg & Potomac Railroad v. Louisa Railroad, 13 How. 71. Gibbons v. Ogden, 17 Johns. 488, and 4 Johns. Ch. 150. Newburgh & Cochecton Turnpike v. Miller, 5 Johns. Ch. 101. Moor v. Veazie, 31 Maine, 360, and 32 Maine, 343.

This section is to receive that construction, which will best carry into effect the intent of the parties to it. From the words of this section, and the spirit of the whole act, it clearly appears that the intention of the plaintiffs was to secure an exclusive right for a certain number of years, before investing their money in building a railroad, and that the intention of the legislature was to grant them such exclusive privilege, in order to induce them to make such investment. The meaning of the legislature being clear upon the face of the act, all technical rules as to the construction or form of particular terms are to be disregarded; especially since the effect of the act is to make a contract between the State and the plaintiffs. Dwarris on Sts. 694, 695. Huidekoper v. Douglass, 3 Cranch, 70. Charles River Bridge v. Warren Bridge, 7 Pick. 462, 521, and 11 Pet. 597, 601. Wilkinson v. Leland, 2 Pet. 662. Chesapeake & Ohio Canal v. Baltimore & Ohio Railroad, 4 Gill & Johns. 3. Co. Lit. 56 a. Plowd Saunders's case, 5 Co. 12. Somerset v. Dighton, 12 Mass. 384. Whitney v. Whitney, 14 Mass. 92. Stanwood v. Peirce, 7 Mass. 460. Com. Dig. Parliament, R. 10-28. Bac. Ab. Statute, I. 5. Boulton v. Bull, 2 H. Bl. 499. Bac. Max. reg. 3. 1 Bl. Com. 88. 2 Inst. 496, 497. 1 Kent Com. (6th ed.) 460 & note. Hartford Bridge v. East Hartford, 16 Conn. 176. Enfield Toll Bridge v. Hartford & New Haven Railroad, 17 Conn. 56, 57.

Page 19

The stipulation in § 12 is not a mere executory contract, but rather a description and extension of the grant contained in § 1, making it a grant of an exclusive right to have a railroad between the limits defined, for thirty years. But if a mere contract executory, it is analogous to a covenant for quiet enjoyment, or a covenant against interruption by the grantor; it is a promise on the part of the legislature, for a consideration, that no competing road shall be made for thirty years, and is a contract which gives a peculiar character and value to the property granted; and the entire act, including this provision, was accepted by the plaintiffs, as a whole. Whatever is the subject of property may be taken by the legislature under the right of eminent domain. But if it were true that the legislature cannot take an executory contract for public uses, they can take the plaintiffs' road and all their property to which the contract relates. So that the power of the legislature to take is not affected by this provision; but, at most, only the measure of compensation.

This provision, which is a grant, license and contract with the plaintiffs, is, as against all others, an ordinance, obligatory strictly as law, irrepealable, or at least unrepealed, a legislative command to all to recognize and respect the plaintiffs' rights and privileges, and equivalent to a standing general law, that no person or corporation shall be authorized to make a competing road. Suarez de Leg. Lib. 1, c. 14, § 9; c. 17, § 13; Lib. 8, c. 6, § 1; c . 22, § 2; c. 23, § 1.

II. The power to establish a competing line of railroad between Boston and Lowell cannot be acquired except by express grant from the legislature. And the legislature have manifested no intention to repeal § 12 of the plaintiffs' charter. Repeal by implication is not favored. Chesapeake & Ohio Canal v. Baltimore & Ohio Railroad, 4 Gill & Johns. 6. Loker v. Brookline, 13 Pick. 348. Haynes v. Jenks, 2 Pick. 176. Snell v. Bridgewater Cotton Gin Manufacturing Co. 24 Pick. 297, 298. Goddard v. Boston, 20 Pick. 410. Bowen v. Lease, 5 Hill, 221. Planters' Bank v. The State, 6 Sm. & Marsh. 628. The true rule of construction of the several acts relating to the plaintiff and

Page 20

defendant corporations is, to take them all together, and give them such a construction, if possible, as will best protect the rights and privileges of each. The several roads of the defendants were established for distinct purposes, as appears by their charters, in two of which are express restrictions on any union which might affect the plaintiffs' rights. And a use of their roads, for the purposes complained of, is in fraud, not only of the plaintiffs' rights, but of the very acts of the legislature under which the right to make such use is claimed. Dig. Lib. 1, Tit. 3, § 29.

The act complained of is the causing to exist and be operated a railroad, leading from Boston to Lowell, almost parallel with the plaintiffs' road, and competing with it, on systematic design, for the through travel between those cities. The appropriating of portions of the three roads of the defendant corporations to a permanent new use, as a continuous road from Boston to Lowell, is a "making" of a road leading from Boston to Lowell, within the meaning of § 12. Richardson's, Johnson's and Worcester's Dictionaries, verb. "Make." Dig. Lib. 50, c. 16, § 218. Thompson v. New York & Harlem Railroad, 3 Sandf. Ch. 656. And the fact that the three sections of the defendants' roads are still used as parts of their distinct roads does not affect the case. Nor does the fact that the road so made is not all under the control of one corporation; for it works the same mischief to the plaintiffs, and in the same way, as if it were.

The St. of 1852, c. 118, particularly relied on by the defendants, expressly requires the use by the Boston and Maine Railroad and the Salem and Lowell Railroad Company, of each other's roads, to be "according to law," that is, in a manner that will not conflict with existing laws, or interfere with rights previously granted by the legislature. And the provision, that this act shall not be construed to impair the rights of any person or corporation, in terms covers the right of the plaintiff corporation; one of the most important of which is the exclusive right of transportation between Boston and Lowell.

Every statute is to be so construed, if possible, as to accord with the Constitution. The St. of 1852, upon the defendants'

Page 21

construction, impairs the obligation of the contract between the Commonwealth and the plaintiffs. A law which in its practical operation impairs the obligation of a contract is as unconstitutional as one which in terms impairs such obligation. See cases cited ante, 17. Nor does the St. of 1852 declare the existence of a public exigency, as is requisite to authorize the legislature to exercise the power of eminent domain. Although the legislature may be the exclusive judges of the existence of the exigency, they must distinctly declare its existence, in order to authorize them to appropriate private property to the public use. And no compensation to the plaintiffs for the injury occasioned to their property is provided for in the act itself, or by any general law.

III. The infringement by the defendants of the plaintiffs' exclusive franchise of railroad transportation between Boston and Lowell is a nuisance to the plaintiffs' rights; and the proper remedy is by this process in equity for an injunction. 2 Eden on Injunctions, 271-276. Com. Dig. Chancery, D. 12. Jeremy on Eq. 310. Croton Turnpike v. Ryder, 1 Johns. Ch. 615. Newburgh & Cochecton Turnpike v. Miller, 5 Johns. Ch. 101. Livingston v. Van Ingen, 9 Johns. 585. Gardner v. New burgh, 2 Johns. Ch. 162. Ogden v. Gibbons, 4 Johns. Ch. 174. Frewin v. Lewis, 4 Myl. & C. 255. Osborn v. Bank of United States, 9 Wheat. 841. Charles River Bridge v. Warren Bridge, 6 Pick. 376. Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35. Hartford Bridge v. East Hartford, 16 Conn. 149. Enfield Toll Bridge v. Hartford & New Haven Railroad, 17 Conn. 40. Yard v. Ford, 2 Saund. 171. Gates v. M'Daniel, 2 Stew. 211. Rev. Sts. c. 81, § 8.

The plaintiffs' remedy is not upon the Rev. Sts. c. 39; for the bill proceeds not upon the ground of a lawful taking, but of a wrongful intrusion, not authorized by the statutes under which the defendants claim. Besides; the provisions of the Rev. Sts. c. 39, clearly have reference to an actual taking, and not to the injury to a franchise occasioned by a new use of roads already made. Such taking is not a taking by authority of the legislature, but by agreement of the corporations among themselves.

Page 22

The remedy by information in the nature of a quo warranto, given by Sts. 1851, c. 233, § 52, and 1852, c. 312, § 42, cannot take away the jurisdiction of this court as a court of equity. Varet v. New York Ins. Co. 7 Paige, 560. King v. Baldwin, 17 Johns. 384. White v. Meday, 2 Edw. Ch. 486. Wilson v. Kilcannon, 1 Overton, 201. And the remedy under these statutes would afford no adequate relief for the injury sustained; for the defendants could not in that way be held to account, or to pay the damages sustained by the plaintiffs.

J. Parker, in reply. If the legislature, by the mere grant in § 1 of the right to build a railroad between Boston and Lowell, deprived themselves of the power to establish another road for a similar servitude, as was suggested for the plaintiffs, then § 12, which purports to bind the legislature for thirty years only, is unnecessary. But there is no authority to support this construction. If it were sound, the Charles River Bridge would have been saved; for the grant was as ample as that contained in § 1 of the plaintiffs' charter, and the Warren Bridge was for the same servitude. 7 Pick. 344. See also Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 57, and Thompson v. New York & Harlem Railroad, 3 Sandf. Ch. 625.

Nor does the mere grant of a right to take tolls exclude other grants of a similar character with the same right. And the provision in § 5 of the plaintiffs' charter, by which the legislature may reduce the tolls to ten per cent., can hardly operate to enlarge the grant itself so that the legislature may not make other grants affecting the tolls. If such might be its operation, the reservation of the power to reduce the tolls would serve to give the plaintiffs a much better right than they would have with an unlimited right to take tolls.

But the plaintiffs claim to sustain their bill mainly on the provisions of § 12, and in order to determine what rights they have under it, the court must ascertain the true character of that section. It has been called by the counsel "a grant," "a contract," "a law" and "an ordinance;" and it has been said to give exclusive privileges, the nature of which has been differently stated in different parts of the argument. But the

Page 23

defendants say that § 12 contains, not a grant, but a covenant; an executory, and not an executed contract. It may be quite important what character is impressed upon it.

If it is a grant of the exclusive right of transportation from Boston to Lowell, then, if valid, it would restrain all transportation between those places by any other road, however indirect. If it is an executed contract, having the character of a grant of exclusive limits, then the plaintiffs have, by that section, a franchise or property, subject to the power of eminent domain, and which may be taken when the public exigencies require it. But if it is a mere executory contract, and valid as such, it is a contract of restraint, and the plaintiffs can have no property in a restraint upon the legislature, which can be taken for the public use. A stipulation not to do is an executory contract, as much as an obligation to do a particular thing Fletcher v. Peck, 6 Cranch, 136. Dartmouth College v. Woodward, 4 Wheat. 682.

It will be borne in mind that the stipulation in § 12 is for something outside of and beyond the matter granted in § 1. It is as if a grantor, after having granted a tract of land, had made an agreement in a subsequent part of the deed, restraining himself from a particular use of his other lands adjoining. The plaintiffs' charter, while it has to a certain extent the form of a statute or law, is in effect a deed, or grant, or contract. For present purposes, it has the character of a deed. In § 1 is a grant of a franchise. The act also contains conditions and restrictions upon this grant, and prescribes the mode in which it is to be used. In § 12 is a covenant of the grantor. This covenant cannot enlarge the grant, although it might be referred to if the words of the grant were ambiguous. Corbin v. Healy 20 Pick. 516. Mills v. Catlin, 22 Verm. 98.

In order to give the plaintiffs ' construction to § 12, as a part of the grant, we must not only change its form, but its substance; not only its terms, but its operation and effect.

A stipulation on the part of the legislature, that no other railroad from Boston to Lowell shall be authorized to be made, is one thing, clear and explicit. Any other railroad, not from

Page 24

Boston to Lowell, may be authorized, and may transport passengers or freight without paying damages to the plaintiffs. But that being its character, if it is a valid agreement, the legislature cannot, by virtue of any right of eminent domain, grant another railroad from Boston to Lowell, even with a provision for the payment of damages. The stipulation would be broken the instant when such authority was given by the legislature. But any party, who could agree with the landholders, might build a railroad, and use it as a common carrier, if it could be done without interfering with the public highways. 11 Leigh, 72. And if there was such interference, the plaintiffs would have no concern with that. Upon that construction, the restraint is upon the legislature.

A grant of an exclusive right to build a railroad from Boston to Lowell is another thing, essentially different. If that is the character of the plaintiffs' right, not only may railroads be granted running from either place to other places, without any provision for the payment of damages to the plaintiffs, but another road might be granted from Boston to Lowell, the law making provision for the assessment of such damages as the plaintiffs should sustain by the new grant. There would, in that view, be no breach of any stipulation by the grant authorizing such other road to be built. But no party could build a road without a grant and payment of damages. The grant of the exclusive right would operate to restrain every one from building, unless he could show authority to take a part of the plaintiffs' franchise. The restraint would be upon individuals as well as upon the government.

There are two very important distinctions, therefore, between these two constructions; one relating to what will constitute a breach, and the other relating to the extent and operation of the grant. Upon what principle are the court authorized to change this covenant to a grant, and thus change its effect and operation, not merely from covenant to grant, but so that it gives other and different rights, and causes other and different restraints?

The difference between this case and that of the Piscataqua Bridge is shown by reference to 7 N H. 64, 65, 68, 69. There

Page 25

the contract of the State with the plaintiffs was executed, and they had a property in the exclusive grant, and there was no mere stipulation or covenant of the State not to authorize another bridge within certain limits. The question of the right of the legislature to part with the power of eminent domain was not decided in that case, nor in 13 How. 75, 81; and that the legislature cannot surrender it was admitted by Justices Story and Thompson, in 11 Pet. 643, 644, 646, 650.

A mere executory contract of restraint cannot be taken under the right of eminent domain. [THOMAS, J. Why not, if it is property?] There is no property in a mere contract not to do an act, which is capable of being taken. To take the restraint is to break the contract. In fact, we do not see how any mere executory contract can be taken for the public use. [SHAW, C. J. If a state makes a contract to convey land in five years, cannot the land be taken for a fort, if the public exigency requires it, within the five years?] Certainly. There the land is taken, not merely the agreement to convey.

But admitting the stipulation in § 12 to operate as a grant of property, if the defendants have only used their roads for a new purpose, as stated in the bill, it is no infringement of the stipulation. If they have thereby made a new road, as was said by the plaintiffs' counsel, it was under authority of the St. of 1852, c. 118, and of previous acts; and the plaintiffs' remedy, if their property is thus taken, is under Rev. Sts. c. 39, § 56. By the St. of 1852, the restrictions of former acts are removed, and the Boston and Maine Railroad and the Salem and Lowell Railroad Company are each authorized to enter on the road of the other "according to law." By earlier statutes, any railroad corporation may contract with any other, whose road enters upon or is connected with its road, to do all the transportation over said road. St. 1838, c. 99, § 1. And every railroad corporation is required at reasonable times, and for a reasonable compensation, to draw over its road the cars, &c. of any other corporation, authorized by the legislature to enter with its road upon, or to unite the same with the road of such corporation. St. 1845, c. 191, § 2. This last statute will not

Page 26

allow the defendant corporations to refuse to draw each other's cars because they happen to come from and to Boston and Lowell. The clause in the St. of 1852, that nothing therein contained shall be construed to impair the rights of any person or corporation, is only the usual formal clause; and if intended, as it is said, for the very purpose of protecting the plaintiffs, it is strange that it was not more distinctly expressed.

The authority conferred by the legislature to do the act of taking the property of another is a sufficient declaration that the public exigency requires it. It is not indispensable that the provision for compensation, if necessary, should be inserted in the same act which authorizes the taking. It is sufficient that the general laws of the Commonwealth make ample provision for compensation. Rev. Sts. c. 39, §§ 45, 56. Dodge v. County Commissioners, 3 Met. 380. If the plaintiffs cannot recover any damages, it is because the damages occasioned to them, by the use of the defendants' roads as a road between Boston and Lowell, are merely incidental to a lawful use of the defendants' roads, and afford no ground for compensation.

If any part of the plaintiffs' franchise has been taken, it was by the Lowell and Andover Railroad Company, when they entered upon and used the plaintiffs' road pursuant to their charter, as alleged in the bill; and for such taking the plaintiffs have already had their damages assessed. The plaintiffs had no other property which was taken by the defendants under their respective charters, nor any property in the restrictions, imposed by those charters, on the use by the defendants of their several roads, although such restrictions might incidentally benefit the plaintiffs. The plaintiffs had no stipulation against the right of the defendants, like other railroad corporations, under general laws, to enter upon and use each other's roads. They had no stipulation against the defendant's right of selling tickets from one distant point to another, over several railroads, at a cheaper rate than if tickets were bought for each road separately. And what the defendants might lawfully do, they might lawfully advertise that they would do. The legislature were not bound to impose restrictions on the defendants in the

Page 27

first instance, and having now taken them off, the defendants have the same rights as if the restrictions had never existed.