very much at length by an experienced and learned judge, and the conclusion arrived at, that, the plaintiffs' charter expressly providing that no other railway should be authorized by the legislature within thirty years, leading from Boston, Charlestown, or Cambridge, to Lowell, or to any point within five miles of the northern terminus of plaintiffs' road, it was not competent for the defendant companies so to connect their roads as to make a continuous line from Boston to Lowell, by Salem and Lawrence, even if it were conceded that the legislature might by express grant have created a rival road from Boston to Lowell, infringing the terms of the plaintiffs' grant. And inasmuch as the defendants had so conducted their business as virtually to create a rival line from Boston to Lowell, in contravention of the express terms of the plaintiffs' grant, without the express permission of the legislature, it did constitute such an infringement of plaintiffs' charter as to be a nuisance to their rights, for which they are entitled to a remedy. And the court accordingly granted a perpetual injunction against the infringement of plaintiffs' rights in the manner complained of. 6. There are many other cases, taking substantially the same view of the propriety of equitable interference to protect corporations against infringements of their corporate franchises.5 Newberg & Cochecton Turnpike Co. v. Miller, 5 Johns. Ch. 101, 111; Ogden v. Gibbons, 4 Id. 150, 160; Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 611. A railway bridge is an interference with the charter franchise of a tollbridge, for a turnpike or highway. Enfield Toll-Bridge Co. v. Hartford & New H. Railw., 17 Conn. R. 40. And in s. c. 17 Conn. R. 454, it is considered, that the condition in the plaintiffs' charter, that no person shall erect another bridge within the limits of Enfield and Windsor, is a part of their franchise, and not a distinct covenant. But where the charter of the toll-bridge contained no exclusive grant and no limitation, in regard to the power of future legislatures to erect other similar bridges, it was held they had no exclusive franchise, and that an injunction would not be granted against another company, chartered by the legislature, within such distance as to lessen the tolls of the first company. Mohawk Bridge Co. v. The Utica & Schenectady Railw., 6 Paige, 554. And in Bridge Proprietors v. Hoboken Co., 1 Wallace, U. S. 116, the national tribunal of last resort held, that even where the charter of a toll-bridge does contain such exclusive grant, a railway bridge, adapted only for railway communication, is not an infringement of such grant. Post, § 231. This was the case of a railway, indeed, which is not so obviously an evasion of the rights and interests of the toll-bridge company, as a company precisely similar, but even that is no 7. And it has been held, that a grant to a canal company, to *collect tolls for transportation, with an express stipulation against their being reduced by the act of the legislature, is not impaired by the grant of a railway along the same route, with power to take the lands of the canal for its construction when necessary.6 8. An injunction was granted, at the suit of the state, to restrain a railway company from filling up a part of the state canal, and erecting an arch over it, which would obstruct its use, although it appeared that this portion of the canal had laid in a state of abandonment for many years.7 9. But where a railway company, by act of the legislature, are allowed to purchase a canal, and are bound to maintain and keep it open for traffic, and are to exercise all the rights, powers, and privileges which the canal company might have done before the sale, it was held that the railway company might take the lease of another canal, under the general statute. It is doubtful whether, if such act were ultra vires, the nominee of another company can bring a bill to restrain the act.9 infringement, unless the charter of the first company contained an exclusive grant. Charles River Bridge v. Warren Bridge, 11 Pet. 420; Dyer v. The Tuscaloosa Bridge Co., 2 Porter, 296. See also Thompson v. The N. Y. & Harlem Railw., 3 Sand. Ch. 625; Oswego Falls Bridge Co. v. Fish, 1 Barb. Ch. 547. * Illinois & Mich. Canal v. Chicago & Rock Island Railw., 14 Ill. R. 314. ' Commonwealth v. Pittsburgh & Connellsville Railw., 24 Penn. St. 159. 8 8 & 9 Vic. ch. 42; Rogers v. Oxford, W. & W. Railw. Co., 2 De Gex & Jones, 662. 9 Rogers v. Oxford & C. Railw. Co., supra. In this case, the bill was brought by the clerk of a rival canal company, by purchasing a few shares of the railway stock to enable him to maintain the bill in his own name, but on behalf of the other stockholders as well, but in fact, for the benefit of the rival company. This is a not uncommon shift, in controversies of this character, and it is in our humble judgment a disgraceful evasion, which a court of equity ought not to countenance. If the stockholders of the company acquiesce, mere intermedlers ought not to be allowed to interfere. This is the opinion frequently intimated in the English courts, and it is the only ground of doubt in regard to the case of Stevens v. Rut. & Bur. Railw., 1 Am. Law Reg. (1853), 154; ante, § 56. * 502 SECTION XI. Injunctions against the Infringement of Corporate Franchises in the Nature of Nuisance. 1. Allowed to prevent multiplicity of suits, | 3. Definition of same by Chief Justice Shaw. collisions, and riots. 4. Statement of the general grounds of equitable interference. 2. Lord Brougham's definition of the jurisdiction. § 215. 1. The cases coming under the general denomination of injunctions, to restrain nuisances to corporate franchises, are very numerous and various, too much so, by far, to be here enumerated. It is a branch of equity jurisdiction of ancient date, and which in modern times has been very extensively resorted to by the equity courts, in order to prevent irreparable damage, in various modes, as by multiplicity of suits, by collisions. in the nature of riots, among the numerous champions of rival public enterprises, and for many other reasons, recommending this mode of redress especially to public favor.1 2. The grounds of equitable interference, in case of nuisance, are well stated by Lord Brougham, in The Earl of Ripon v. Hobart.2 "If the thing sought to be prohibited is in itself a nuisance, the *court will interfere to stay irreparable mischief, without waiting for the result of a trial, and will, according to the circumstances, direct an issue, or allow an action, and if need be expedite the proceedings, the injunction being in the mean time continued." But, says his lordship in substance, where the thing is only liable to prove such, according to circumstan 1 Attorney-General v. Sheffield Gas. Co., 19 Eng. L. & Eq. 639. This is a case where the injunction is denied upon the ground of the trivial character of the nuisance or damage, but the general grounds of the jurisdiction of courts of equity in such cases, being necessarily involved in the inquiry, are fully and ably discussed, by Turner and Bruce, Lords Justices, in giving their opinions. See also the opinion of Lord Eldon, in Attorney-General v. Nichol, 16 Vesey, 338, upon the same general subject. The court will not interfere by injunction to prevent a nuisance caused by carrying on a trade which is temporary and occasional only. Swaine v. Great Northern Railw., 10 Jur. N. S. 191. 23 Mylne & Keen, 169. ces, the court will not interfere until the matter has been tried at law. And the same general doctrine is maintained in other cases upon this subject.3 3. In the case of Boston and Lowell Railway v. Salem and Lowell Railway et al., Chief Justice Shaw thus lays down the law upon the subject: "An injunction will generally be granted to secure a statute privilege, of which a party is in actual possession, unless the right be doubtful." 4 4. The equitable interference, by injunction, goes upon the ground that the defendant's acts constitute a nuisance, and that the plaintiff sustains special damage thereby, and that the law affords no specific and adequate remedy. Hence it is not competent for one who suffers damage, in common with others only, to maintain a bill to enjoin a party from the continuance of a public nuisance, under color of legislative grant.5 SECTION XII. Injunctions to preserve Property pendente lite. 1. Will not decree specific performance, where | 2. Where injunction might operate harshly, mere question of damages. parties put under terms. § 216. 1. There are some cases where courts of equity have interfered, by injunction, in controversies between different railways, to preserve the property pending the litigation. But in a case where one railway company had leased its line and furniture to another company, and this company proposed to disregard the contract on the ground of its illegality, and were about 3 North Union Railw. v. Bolton and Preston Railw., 3 Railw. C. 345; Semple v. London and B. Railw., 1 Railw. C. 120. 2 Gray, 1. See also upon this point, ante, § 214, n. 4. Livingston and Fulton v. Van Ingen and others, 9 Johns. 507; Ogden v. Gibbons, 4 Johns. Ch. 174; Osborn v. Bank of U. States, 9 Wheat. 738, 841. 5 Bigelow v. Hartford Bridge Co., 14 Conn. R. 565; O'Brien v. Norwich and Worcester Railw., 17 Conn. R. 372; Delaware and Maryland Railw. v. Stump, 8 Gill & J. 479. entering into an arrangement with another company, which would be in violation of the first contract, the court declined to interfere, by injunction, as it was not clear that the first contract was valid, or that the loss to the second company, in not entering into their proposed arrangement with the third company, might not be greater than their loss from violating the first contract.1 2. In the English equity practice, in some cases, in consideration of the consequent delay and inconvenience resulting from the injunctions, the courts have put the parties under terms to obey the orders of court, and in default of complying with such orders, the injunction to issue. This is done so as to effect substantial justice to one party, without imposing unnecessary hardship upon the other.2 1 Shrewsbury and Chester Railw. v. The Shrewsbury and B. Railw., 4 Eng. L. & Eq. 171; 1 Simons (N. s.), 410. See also Spiller v. Spiller, 3 Swanst. 556; The Great W. Railw. v. The Bir. and Oxford J. Railw., 2 Phillips, 597; Farrow v. Vansittart, 1 Railw. C. 602. The question in this case was, whether a reservation, in the lease of land, of the minerals, and the right to remove them, implied the right to erect a public railway, and the Lord Chancellor continued the injunction, to preserve the property, during the pendency of the necessary trial at law. But by a late English statute, 15 & 16 Vict. ch. 86, sec. 61, courts of equity are authorized, in cases where they deem a trial at law unnecessary, to determine the question themselves. Under this statute the equity courts often avail themselves, as by the 14 & 15 Vict. ch. 83, § 8, they are allowed to do, of the assistance of one of the common-law judges. And it is held that the court will still, in a proper case, give leave to the party to bring an action at law. Hodges, 676; ante, § 190. 2 Northam Bridge and Roads v. The London and Southampton Railw., 1 Railw. C. 653. This is a case where the plaintiff prayed for an injunction upon defendants from crossing their road, except by means of a bridge. The question of right being sent to the Court of Exchequer, and determined in favor of plaintiffs, the Chancellor, upon the defendants undertaking to build the bridge with all possible despatch, held, that an injunction ought not to be granted during the time that must necessarily elapse in building the bridge. See also Spencer v. London and B. Railw., 1 Railw. C. 159; Jones v. Great Western Railw., 1 Railw. C. 684; London and Birm. Railw. v. The Grand Junc. Canal Co., Id. 224; Attorney-General v. The Eastern Counties Railw., 3 Railw. C. 337; Langford v. The Brighton L. & H. Railw., 4 Railw. C. 69. This was a controversy in regard to the payment of the price of land, which was in dispute between the parties. The bill prayed, that the defendants be restrained from going forward with their works until they shall have paid the amount demanded. The court held, they would not interfere by injunction to stop the |