The Mohawk Bridge Company vs. The Utica & Schenectady Rail Road Company, 6 Paige Ch. 554

The Chancellor. Being satisfied upon, the hearing of this application that a preliminary injunction ought not to be granted, I have delayed the decision to give the Mohawk Bridge Company an opportunity, if they thought proper, to try the question in a suit at law against the defendants, whether .the carrying of passengers across the river in the rail road Cars, on their way to different places op the line of the road, was an infringement of the charter of the bridge company, as. alleged in the bill in this cause.

But perceiving from the published reports of the proceedings of the legislature that the important questions raised upon the argument are considered as still before me for decision upon the present application, I shall proceed to dispose of the case • . . . upon its merits, without reference to the particular form in which some of those questions were brought before me. The first and most important question raised upon the argument relates to the right of the defendants to erect a bridge and cross the river with their rail way, under the act incorporating the rail road company. The first

section of the act, (Laws of 1833, p. 462,) gives power to the corporation to construct a rail road or way commencing at or near the city of Schenectady, and running thence on the north side of the Mohawk river as far as the village of Herkimer, and terminating in the city of Utica. And the ninth

section provides that whenever it shall be necessary to intersect or cross any stream of water or any road or highway lying betwixt the places specified in the first section, it shall be lawful for the corporation to construct the rail road or ways across or upon the same.

Under a similar provision in the act to incorporate the Rensselaer and Sara-toga Rail Road Company, the supreme court and this court have both decided that the corporation had a right to erect a bridge upon piers for the purpose of carrying their rail ways across a navigable river, between the places prescribed for the commencement and termination of the road; subject to the condition prescribed in the act, that the usefulness of the stream should not be impaired thereby, (The People v. The Rensselaer & Saratoga R. R. Co. 15 Wend. Rep. 114. Weaver & others v. The Same, in Chan.

April 4, 1837.) The only question upon this part of the case, therefore, is whether by the terms of their charter the defendants had a right to commence their rail road at a point within the bounds of the city of Schenectady—the north bounds of that city being the middle of the channel of the river. It is only necessary to advert to facts of public notoriety, to enable us to understand the language used by the legislature in the first

section of the charter of this corporation. As the canal was located on the south side of the Mohawk, several members of the legislature insisted upon having the ra^ roa-d uPon the north side of the river for the accommodation of the inhabitants on that side. And to compel the company thus to locate the road as far west as was suppoSe<^ to k® practicable and convenient, the words, “ and running thence, on the north side of the Mohawk river, as far as the village of Herkimer,” were inserted in the act.

These words, however, were not intended to designate the side of the river where the road was to commence; which was to be either at the city of Schenectady, or near it. Rail roads had then been made, or were nearly completed, between Albany and Saratoga Springs; and which crossed the toll bridge of the Mohawk Bridge Company at Schenectady. The legislature, therefore, contemplated that the directors of the new corporation might find it for their interest to unite their rail way with the other rail road at the north end of the bridge ; which was near but not at or in the city of Schenectady.

Hence the word near is used to show that the corporation was not to be compelled to cross the river with its road, which it might have been obliged to do if the starting point had been absolutely fixed at a point in the city. But the legislature also intended to give the corporation the right to extend their rail way across the river into the city if the directors at the time of the location of their road should deem it expedient to do so. And the language used in the first

section of the act of incorporation is very appropriate to carry into effect this intention of the law makers. The preposition at, when it precedes the name of a place and denotes situation, frequently means the same as in or within ; and in that sense it was used by the legislature in this act of incorporation. Even the expression to a place has, in the charter of a turnpike company, been construed to mean to a point within the place to which the corporation was authorized to construct its road. (The Farmer’s Turnpike v. Coventry, 10 John.

Rep. 400.) The directors of this rail road company were therefore authorized by the charter to commence their rail way near the city of Schenectady on the north side of the river, or at some suitable point on the south side of the Mohawk within the city. But if they commenced within the city they were bound to extend their road from thence directly across the river to the north side before they proceeded west towards the point of termination at the city of Utica.

The erection of the defendants’ bridge being authorized by the charter of the corporation, the natural remedy of the complainants for any damage they may sustain by an improper construction thereof, to their injury, is by a suit at law, after such injury has actually occurred. The jurisdiction of this court, however, to interfere by injunction to prevent the erection of a nuisance to the serious and irreparable damage of a complainant is now too well settled to be longer questioned.

But the supposed danger to the property of the complainants does not render this a proper case for the interposition of this extraordinary power of the court of chancery. The principles upon which this court should proceed in granting or refusing relief by injunction in cases of this kind are correctly laid down by Lord Brougham in the recent case of The Earl of Ripon v. Hobart, (Coopers Rep. Temp.

Brougham, 343.) If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay irreparable mischief, where the complainant’s right is not doubtful, without waiting for the result of a trial. But where the thing sought to be restrained is not in itself noxious, but only something which may according to circumstances prove to be so, the court will refuse to interfere until the matter has been tried at law by an action; though in particular cases the court may direct an issue, for its own satisfaction, where an action could not be brought in such a form as to meet the question.

And in applying these principles, if the magnitude of the injury to be dreaded is great, and the risk so imminent that no prudent person would think of incurring it, the court will not refuse its aid for the protection of the complainant’s rights, by injunction, on the ground that there is a bare possibility that the anticipated injury from the noxious erection may not happen-j In this case, even if we take the complainants’ own allegations as contained in their bill, I cannot say I am perfectly satisfied that the impending danger to their property by the erection of this bridge is so great as to authorize this court to interfere.

And if the affidavits introduced on the * part of the defendants are allowed their due weight, it cannot be said that there is any thing more than a mere possikility that the complainants may be seriously injured by the damming up of the ice in the manner specified in the bill.

This disposes of the question of the granting of the injunction as prayed for in the bill; for if the Mohawk Bridge Company are entitled to relief on account of the supposed infringement of their charter by the carrying of passengers across the river in the railroad cars, the only relief to which that company would be entitled is an injunction to.restrain the defendants from carrying their passengers across the river on their bridge.

But this could not deprive the defendants of the right to have a bridge to cross upon with their locomotives and cars ; which would not interfere with the right claimed by the bridge company.

There cannot be a reasonable doubt, however, as to the right of the Utica and Schenectady Rail Road Company, under the provisions of their charter, to transport their passengers across the river in their rail road cars, so long as they confine themselves to those who travel upon the rail road, and while they do not attempt to interfere with the privileges of the toll bridge company by crossing with those who merely wish to pass across the river in that way to avoid paying toll at the other bridge.

The legislature" has indeed protected the Mohawk Bridge Company in the enjoyment of an exclusive right to carry passengers across the river at Schenectady, to a certain extent, by prohibiting others from establishing a ferry within a certain distance from the toll bridge ; but it has not deprived a future legislature of the right to authorize the erection of another bridge within the prescribed limits whenever the public good shall appear to require it.

Much less is the legislature deprived of the power to provide for the conveyance of freight or passengers from one part of the state to another, by an improvement which was entirely unknown at the time when the grant to the bridge company was made.

And if that grant had in terms given to the corporation the exclusive right of erecting a toll bridge across the river at Schenectady, this subsequent grant to the rail road company to cross the river with their rail way from Schenectady to Utica, and to transport passengers thereon in the ordinary course of their business in the conveyance of travellers from one place to another, would not have been an infringement the privileges conferred by such prior grant; as the rail road bridge would not be a toll bridge within the intent and meaning of the grant to the first company.

Grants of exclusive privileges being in derogation of public rights belonging to the state or to its citizens generally, they must be construed strictly, and with reference to the intent and particular objects of the grant. As the complainants are not entitled to the relief asked for in this case, the motion for an injunction is denied with costs. See the cases of The Proprietors of the Charles River Bridge Company v. The Proprietors of the Warren Bridge, 11 Peters’ U. S. Reports, 420 ; and Dyer v. The Tuskaloosa Bridge Company, 2 Porter’s Alabama Rep. 296.