the suit of a private individual or of a corporate town, to restrain the commission of a public nuisance; as the obstructing of a highway, or the obstructing of a navigable river by driving piles therein. The remedy is by indictment.' Or if the town has such an interest, apart from the public generally, as might enable it to maintain such a remedy, and yet the right of the party to commit the act complained of be doubtful only, then the remedy by injunction will only lie after the party claiming it has established, by an action at law, the right to prevent the commission of the act. Thus a railroad company will not be restrained by injunction, in a doubtful case, from driving piles to erect a bridge in a navigable stream.

But if the act complained of be the cause of special damage to 2 private citizen, different in character from that resulting therefrom to the public generally, then, although the thing complained of be in fact a public nuisance, indictable in law, yet such private person may maintain his bill to abate it, or to enjoin a recurrence of it; and this, too, without the concurrence or name of the Attorney General, or attorney for the state, connected with the bill as complainant; for the fact of the defendants violating the rights of the public, as well as those of a private person, is no defense against a suit of such private person for the injury, or to restrain it.*

3. Against the company, to prevent obstruction of highway -An injunction will be granted, at the suit of the state, to enjoi a railroad company from an unauthorized encroachment on a public highway, although the same may be fallen somewhat into neglect and disuse. It will be no excuse, therefore, that the highway or canal is practically abandoned, for no neglect is

Conn. 372; Pettis v. Johnson, 56 Ind. 139; Hickey v. Chi. & Western Ind. R. R. Co., 6 Bradw. (Ill.), 172; Miller r. Long Island R. R. Co., 10 Repr. 197 (U. S. Cir. Ct., E. Dist. N. Y.). Where it is certain, by the case made, that the company are exceeding their powers to the injury of a party, and a suitable case exists otherwise for such equitable interference, an injunction will be granted: River Dun Nav. Co. r. The North Midland R. W. Co., 1 Eng. R. W. & Canal Cases, 135.

chargeable against the state.' The case here cited from 24 Pennsylvania State arose in this wise: The Pittsburgh and Connellsville Railroad Company assumed to fill up and arch over one of the locks of the state canal at Pittsburgh, in the construction of their road, under the pretext that such part of the canal had been of no valuable use to the state, and had for many years been in a condition of utter abandonment and desolation. On application of the Commonwealth the act was enjoined."

4. Against the company, to prevent abuse of corporate power. -Although a subscriber to the capital stock of a private corporation may, by injunction prosecuted against the company of which he is a member, prevent the diversion of the funds of the company to a different purpose than the one contemplated by the organization and the law, yet, to do, so, the application

1 Atty. Genl. v. Metropolitan R. R. Co., 125 Mass. 515; Atty. Genl. v. Del. & B. B. R. R. Co., 12 C. E. Green, 1, 631; Atty. Genl. v. Lombard & S. Sts. Pass. R. R. Co., 10 Phil. 352; Commonwealth v. Pittsburgh & Connellsville R. R. Co., 24 Penn. St. (12 Harris), 159. And see also, Kmp v. The London & Brighton R. W. Co., 1 Eng. R. W. & Canal Cases, 495; Playfair. Birmingham, Bristol & Thames Junction R. W. Co., 1 Eng. R. W. & Canal Cases, 641; Bell v. The Hull and Selby R. W. Co., 1 Eng. R. W. & Canal Cases, 616. But in England, where the application is on the relation of private persons, after acquiescence on their part until the erections are partly made, and where the application involves disputed legal rights of the company, a removal of obstructions already made will not be ordered, nor future work enjoined, if the company put themselves under agreement and rule to comply with subsequent final orders of the court in that respect; and the final hearing in equity will be stayed to await a trial of the legal right at law: Atty. Genl., ex rel. Fawcett et

al., v. Manchester & Leeds R. W. Co., 1 Eng. R. W. & Canal Cases, 46. Where the injunction is dissolved upon the defendants paying into court, as security, the amount of damages, and thereupon they obstruct the highway, they are liable for interest on such amount from the dissolution of the injunction: Carpenter v. Easton & Amboy R. R. Co., 28 N. J. Ch. 390, 14 Am. Ry. Rep. 195. The proceeding is controlled by the law officer of the state, though instituted on behalf of private parties: People ». Cent. Cross-town R. R. Co., 21 Hun, 476.

2 In this case the Supreme Court of Pennsylvania say, LOWRIE, J.; "When railway companies or individuals exceed their statutory powers in dealing with other people's property, no question of damages is raised when an injunction is applied for; but simply one of the invasion of a right.” Thus the court responded to the objection of the railroad company that the damage was not irreparable.

must be timely. He may not sleep upon his rights for an indefinite time, till interests have vested or work progressed of an exceptionable character, and then apply for equitable relief therein.' Nor can he stand by and acquiesce in such diversion of the enterprise until sued for his own subscription to the stock, and then successfully plead such misdirection of the enterprise as a defense to the action. To enable a stockholder to have the benefit of an injunction to restrain the violation of, or departure from, the original objects of the charter of the company, he must show himself to have been diligent in the prompt use of all the means in his power to prevent such departure; and may not wait until the mischief is mainly consummated, and extensive expenditures made by the company, before calling on a court of equity for relief."

But although an injunction will lie, at the suit of a stockholder, to prevent the diversion of the corporate enterprise to a different purpose than that contemplated by the charter, to the injury thereby of his corporate interests, yet it will not lie to prevent a measure for the reason that its consummation will be injurious to other interests of such stockholders; and more especially so, where the measure contemplated is in accordance with the spirit of the enterprise. Ilence, where the injury alleged is, as was the case in the reference just cited, that the terminus of the road is about to be extended through a city to a navigable river bounding the same, instead of making the terminus in the city, to the disadvantage of complainant, an injunction will be denied.'

And an injunction will not lie, at the suit of a stockholder, to restrain a railroad corporation from engaging in extended or

Rutland & Burlington R. R. Co., 29 Vt. (3 Williams), 545; Rogers v. Lafayette Agr. Works, 52 Ind. 296.

1 Booker, Ex parte, 18 Ark. 338;

Doane v. Treasurer of Pickaway,
Wright's (Ohio) R. 752.

2 Booker, Ex parte, 18 Ark. 338; Witter v. Miss., Ouachita & Red River R. R. Co., 20 Ark. 463; Memphis Branch R. R. Co. v. Sullivan, 57 Ga. 240; Payson v. Stoever, 2 Dill. 427; Chetlain v. Republic Life Ins. Co., 86

Ill. 220.

3 Chapman and Harkness v. The Mad River and Lake I rie R. R. Co., & The Sandusky City & Ind. R. R. Co., 6 Ohio St. 119; Cozart v. Ga. R. R. & Bkg. Co., 51 Ga. 379; Chetlain v. Rep. Life Ins. Co., supra.

4 Baltimore & Ohio R. R. Co. v. City of Wheeling, 13 Gratt. 40.

5 Baltimore & Ohio R. R. Co. v. City of Wheeling, 13 Gratt. 40.

enlarged enterprises of the same kind, but other than that contemplated by the original charter, if such charter, or the general law governing the same, permit amendments or alterations thereof by legislative enactment, and such new or enlarged enterprise be sanctioned by a legislative act, and by a vote of a majority of the stockholders of such railroad company.1 The case is different from that relation which arises from an agreement to take and pay for stock, and the character of the enterprise is materially changed after making, and before payment of, the subscription. The latter relation rests on a merely executory agreement, whereas the relation of one who is a full stockholder makes him one of the corporate body which does the act complained of, and which act, as one of such body, he is himself privy to, and is bound by, as one of the members. For whoever becomes a member of such a corporation aggregate, agrees, by necessary implication, that he will be bound by the action of the majority in relation to whatever comes within the scope of the charter powers, or may be brought within the same by amendments, when such are allowed by the law of the original charter, or a general law in force at its adoption or acceptance.2

5. Against the company, to prevent private nuisance.-A corporation chartered to build a railroad for the accommodation of the public, can not transfer its franchise to a private party, so as to enable him to build a railroad exclusively for his own private use. And if, under such color of authority, a private individual, assuming to erect and operate a railroad for his own exclusive use and benefit, do unauthorized acts, amounting to a nuisance, to a person's dwelling, by continuously interrupting his egress and ingress to his premises, or other acts of annoyance, equity will inhibit the same by perpetual injunction, at the suit of the injured party. And, generally, a bill for an injunction to prevent

1 Durfee . Old Colony and Fall River R. R. Co., 5 Allen, 230.

2 Durfee v. Old Colony and Fall River R. R. Co., 5 Allen, 230, 243, 245. See Black v. Del. & R. Canal Co., 7 C. E. Green, 130; S. C. 9 Id. 455; Rogers v. Lafayette Agr. Works, 52 Ind. 296; Hedges v. Paquett, 3 Oreg. 77; New Haven & D. R. R. Co.

v. Chapman, 38 Conn. 56.

Stewart and Foltz's Appeal, 56 Penn. St. 413. See State v. Consolidation Coal Co., 46 Md. 1; Atlantic & Pac. Tel. Co. v. Un. Pac. Ry. Co., 1 McCrary, 541; S. C. 1 Fed. Repr. 745. * Stewart's Appeal, supra. And without prejudice to such injunction, an action of trespass will also lie: Ib.

a nuisance may be maintained by any person suffering special damage.1

The charter of a corporation will not be construed to authorize the creation of a nuisance.2

6. Against the company, to prevent taking or using right of way.-In Wisconsin the ruling is, under the act of May 10, 1858, that an injunction will lie to prevent the taking of permanent possession of railroad right of way grounds, where it is made to appear that the company is about to, or threatens to, take permanent possession without first causing the amount of compensation to be legally ascertained, and without making payment for the same; but not upon the bare allegation that no

Shepardson v. Milw. & Beloit R. R. Co., 6 Wis. 612; Powers v. Bears, 12 Wis. 222; Bohlman v. The Green Bay & Lake Pepin R. W. Co., 30 Wis. 105; Diedrichs v. The Northwestern Union R. W. Co., 33 Wis. 219; Bohlman v. Green Bay & Minn. Ry. Co., 40 Wis. 157, 13 Am. Ry. Rep. 421; Henderson v. N. Y. Cent. R. R. Co., 78 N. Y. 423; Holbert v. St. Louis, Kansas City & Northern R. R. Co., 45 Ia. 23; Evans v. Mo., Ia. & Neb. Ry. Co., 64 Mo. 453; Northern Pac. R. R. Co. v. St. Paul, M. & M. Ry. Co., 1 McCrary, 302; S. C. 1 Am. & Eng. R. R. Cas. 12. And see Redman v. Philadelphia, Marlton & Medford R. R. Co., 33 N. J. Eq. 165; S. C. 1 Am. & Eng. R. R. Cas. 1; Northern Pac. R. R. Co. v. Barnesville & M. R. R. Co., 1 Am. & Eng. R. R. Cas. 8. But an injunction

will not lie to restrain the company from the use or occupancy of a right of way already in its possession, where the possession is by permission, express or implied, of the owner: Bohlman v. Green Bay & Lake Pepin R. W. Co., supra; Northern Pacific R. R. Co. v. Barnesville & Moorhead R. R. Co., 1 Am. & Eng. R. R. Cas. 8 (U. S. Cir. Ct., Dist. Minn., 1880). The charter of the Northern Pacific R. R. Co., granted by Congress, confers the power to enter upon land before making compensation; and it is held such power does not conflict with the Constitution of the United States: N. P. R. R. Co. v. B. & M. R. R. Co., supra. It does not exempt the company, however, from the operation of the laws of eminent domain, when invoked by other companies to condemn a crossing over its road: Northern Pac. R. R. Co. v. St. Paul, Minneapolis & Manitoba Ry. Co., 1 McCrary, 302; S. C. 1 Am. & Eng. R. R. Cas. 12. The remedy is available against any one in possession, claiming under the company making the entry: Drury v. Midland R. R. Co., 127 Mass. 571; Western Penn. R. R. Co. v. Johnston, 59 Penn. St. 290; Gilman v. Sheboygan & Fond du Lac R. R. Co., 40 Wis. 653.