less dimensions than what was requisite to secure the mill from injury, the company by their act being bound to make compensation to persons whose property might sustain damage.

6

4. But where the company were, by their act, required to conduct their works, doing as little damage as possible, it was held, by the Lord Chancellor, that nothing but necessity could justify the company in carrying on their works in such a manner, or on such a level, as would cause serious damage to the owner of the land. The maxim, Sic utere tuo ut alienum non lædas, applies to persons acting under enclosure, and other acts of parliament of a similar nature.8

* Coats v. The Clarence Railw., 1 Russell & Mylne, 181. The extent of the requisite arch in this case was determined by the report of an engineer, to whom the question was referred by the Lord Chancellor. In Manser v. The N. &. E. Railw., 2 Railw. C. 380, the Chancellor held, that in a case where the affidavits on points of engineering are conflicting, the court will seek for professional assistance of some impartial engineer, to form a decision upon them. Upon the disputed points the Chancellor says: "I should like to have the affidavit of some eminent engineer." Where a railroad company agreed with a land-owner not to erect any building, except their proposed railway, higher than thirty-three feet on the land to be taken by them from him, the company was withheld from breach of this covenant by injunction; and it was held that the circumstance, that a work to be made in breach of a local covenant is one of great public importance, is not sufficient to induce the court to refuse to restrain such breach by injunction. Lloyd v. London, &c. Railw., 34 L. J. Ch. 401.

7 Manser v. The Northern and Eastern Counties Railw., 2 Railw. C. 380. Some very sensible remarks fell from the Lord Chancellor in this case, in regard to the one-sidedness of testimony upon points of engineering, and the embarrassment attending the trial of cases depending upon such questions, unless the courts are enabled to command the aid of masters wise and experienced in regard to such acts as come in question. And see Birmingham Water-Works Co. v. London & Northwestern Railw., 4 L. T. N. S. 398; Dover Harbor v. London, &c. Railw., 7 Jur. N. S. 453.

9 Dawson v. Paver, 4 Railw. C. 81.

SECTION IV.

Further instances of Equitable Interference as to Works.

1. In a clear case equity will direct the mode 3. Towns may maintain bill in equity to proof crossing highways. tect highways.

2. Mandamus the more appropriate remedy

*

in such cases.

1

§ 208. 1. The subject of the interference of the courts of equity to enforce contracts between the promoters of railways and the land-owners along the proposed line, has been considered in a subsequent chapter. Where a railway company were attempting to carry a turnpike-road over their railway in a manner inconvenient to the public use of such road, an injunction was granted to restrain them from doing it in that mode, the ViceChancellor explaining in what mode the thing should be done, or what results were to be effected, to escape from the injunction.2 But this injunction was granted, without prejudice to any application the company might make to the Board of Trade. But if the case is doubtful, as, for instance, a claim for land damages, the court will not ordinarily interfere, by injunction, but leave the party to pursue his claim at law.3

1 Ante, § 8. See also ante, § 97, for further statement of grounds of equitable interference.

Attorney-General v. London and Southw. Railw., 3 De G. & S. 439; Hodges on Railw. 506; 13 Jur. 467. In Attorney-General v. Dorset Railw., 9 W. R. 189 (s. c. 3 L. T. N. S. 608), it appeared, by the plans and sections deposited by a railway company, that they intended to carry their road across a public way by means of a skew bridge. Instead of doing so, the company diverted the road for some distance, and afterwards restored it to its former course by means of a bridge which crossed the railway at right angles, thus forming two abrupt and dangerous curves. The court granted an injunction until further order, restraining the company from proceeding with the works, and directed that in the mean time a competent person should inquire and report whether any deviation was necessary, and if so, how it could most conveniently be effected. See also Attorney-General v. Tewkesbury & Great Northern Railw., 9 Jur. N. S. 951.

• South Staffordshire Railw. v. Hall, 3 Eng. L. & Eq. 105. See also The London & N. W. Railw. v. Smith, 1 Mac. & G. 216, 13 Jur. 417; East & W. I. Docks & Birmingham J. Railw. v. Gattke, 3 Eng. L. & Eq. 59.

In some cases where the company have given notice of purchase of lands, which, under the English statute, has the effect to create the relation of vendor and purchaser, but omit any further proceedings, the land-owner has been allowed a decree, equivalent to specific performance.1

2. But the more usual remedy, in such cases, as we have seen, is by mandamus, and that, although an old jurisdiction, is not taken away by a new remedy. Yet if a new right be given, and a special remedy provided for enforcing it, such remedy must be pursued.5

3. And it has been held, that where a railway claim to maintain * their road upon a public highway, the town, within which the highway is situated, may sustain a bill in equity, for the purpose of trying the question of the right of the company, under their charter, to maintain their road in that place.

Walker v. The Eastern Counties Railw., 5 Railw. C. 469. And where the contract contains stipulations, in regard to communications with other lands, and similar accommodations, the arrangement in regard to them will be determined by the master. Saunderson v. Cockermouth & W. Railw., 19 Law J. Ch. 503. But it has been held, that where the contract provides that the price of land shall be settled by an arbitrator, it is not such a contract as a court of equity will ordinarily enforce. Milnes v. Gery, 14 Vesey, 400; Adams v. London & B. Railw., 19 Law J. Ch. 557, 2 Mac. & Gor. 118. See also on this subject, Morgan v. Milman, 13 Eng. L. & Eq. 312; s. c. affirmed, 17 Eng. L. & Eq. 203. And the party claiming specific performance must not be premature in his application, or have been guilty of unreasonable delay. Bodington v. Great W. Railw., 13 Jur. 144; South E. Railw. v. Knott, 17 Eng. L. & Eq. 555.

5

Ante, § 81; Adams v. London and Blackwall Railw., 6 Railw. C. 271, 282; Williams v. So. Wales Railw., 13 Jur. 443; 3 De G. & S. 354.

6

Springfield v. Conn. River Railw., 4 Cush. 63. A railway company will not be restrained by injunction from stopping up an ancient highway, in a case where it is doubtful upon the evidence whether the public right of way has not been extinguished by disuse or obstruction. Freeman v. Tottenham, &c. Railw., 13 W. R. 335; s. c. 11 L. T. N. S. 702. In a very recent and well-considered case, Chapman v. Mad R. & Lake Erie Railw., and Sandusky City & Indiana Railw., 6 Ohio St. 119, where the first company defendants, having received from private parties donations of land, subscriptions of stock, and payments in money, in consideration that it should locate its road in a particular place, and allow private side tracks and warehouse privileges in connection therewith, it was held, upon a bill in equity, praying an injunction, that the company will not be allowed to effectuate a change in fact, though not in name, of the line of its road, so as to remove it from such place, by getting up a new company and * 486

VOL. II.

21

SECTION V.

Injunctions to carry into effect orders of Railway Commissioners.

1. Railway companies perform important | 2. Courts of equity will enforce order of railpublic functions. way commissioners, without revising.

§ 209. 1. The office of the former Board of Trade in England, and that of Railway Commissioners in many of the American states, is the same. And in England, this office of the Board of Trade is now, or was for a time, performed by a board denominated The Railway Commissioners. The office of such commissioners, both in England and this country, seems to be, the protection of the public from abuses of railway companies. The jurisdiction of such commissioners is therefore of necessity confined to such matters as affect the public, and does not ordinarily extend to such private matters, in the management of railways, as affect the stockholders only in their pecuniary interests and relations. This result seems to follow, almost of necessity, from the very nature of the * subject-matter. So far as the public security and convenience are concerned, both in regard to the transportation of passengers and freight, and the carrying of parcels by express, these companies are public functionaries, so to speak, and as such, under the supervision and control of the public police, as much as other public officers; but in regard to their stock, and the management of their internal pecuniary functions, they are, to all intents, private companies, as much so as manufacturing or other mere business corporations.

constructing a new road, parallel with its old one, under a different charter, and permitting its old line to go to decay, without compensating the parties, with whom it had made such contract, for the former location.

And the responsible defendant having leased the line of the other company's road, and suffered its own to fall to decay, so that an injunction restraining them from using the new line, unless they restored the old one, would not relieve the plaintiffs, and it being questionable whether the company had the means of restoring the old line, and the new one being the preferable one, it was held a proper case for a decree compensating the orator in damages.

And a railway company is bound to indemnify a town for any alteration made Hamden v. New Haven, &c. in the highways of the town by the company. Railw., 27 Conn. R. 158.

2. Courts of equity have sometimes lent their aid to prohibit railway companies from the violation of the orders of the railway commissioners, where the public security would be thereby endangered. This was done, in a recent case, where the railway commissioners, having inspected a railway, about to be opened, directed the company to postpone the opening, and the company, notwithstanding, proceeded to open their road for business. The Attorney-General, as parens patriæ, applied for an injunction, which was granted, the Master of the Rolls, Sir J. Romilly, refusing to inquire into the sufficiency of the reasons which induced the commissioners to withhold their consent, saying that the company could apply to the Court of Queen's Bench for a mandamus to the commissioners to dissolve the prohibition, if they wished to try that question.1

SECTION VI.

Equitable Interference where Company have not Funds.

1. English courts will not allow company to 3. Equity will not interfere where company take land when their funds fail. propose to complete but part of works. 2. This has been qualified by later cases, and n. 4. Cases reviewed, and result stated. is very questionable.

§ 210. 1. The courts of equity seem, at one time certainly, to have considered the undertaking of the company to build the road, so far the equivalent for the privilege conferred upon them, of taking private property against the will of the owner, that, if it were shown conclusively that the company never could complete their * undertaking, they would restrain them by injunction from taking land under the powers granted them.1 But in another case,2 Lord Eldon explains the ground of his former decision thus: "In Agar v. The Regent's Canal Company, I acted on the principle that where persons assume to satisfy the legislature that a certain sum is sufficient for the completion of a proposed 1 5 & 6 Vict. c. 55, § 6; 7 & 8 Vict. c. 85, § 17; Attorney-General v. Oxford, Worcester & Wolverhampton Railw., Weekly Reporter, 1853, p. 330; Hodges on Railws., 671; post, § 247.

1 Agar v. The Regent's Canal Co., Cooper, 77.

* The Mayor of King's Lynn v. Pemberton, 1 Swanst. 244.