appealed to the friends of the "National Advocate," and to the public, to support his paper; and an injunction to restrain the publication of the new paper was refused.1

§ 55. A., with two physicians, B. and C., established an insane asylum and an immigrant lazaretto. The parties quarrelled, and A. obtained an injunction to restrain B. and C. from visiting the asylum, and they obtained one to restrain him from disposing of the asylum. Both asked for receivers. Held, that a receiver should be appointed, and, as the good-will of the concern was the most valuable part of it, the receiver should sell the concern with the good-will, and both parties should be restrained from carrying on the same business in New York, where the asylum was situated.2

Snowden v. Noah, Hopk. 347.

2 Williams v. Wilson, 4 Sandf. Ch. 379.

CHAPTER XXVI.

ROADS; RAILROADS; CANALS; BRIDGES; FERRIES.

§ 1. INJUNCTIONS are sometimes applied for in reference to public roads.

§ 1 a. Where a company, incorporated to construct a plank road, had completed their road, put it in use, and erected a toll-gate opposite the defendant's land, and the defendant opened and worked a road on his own land parallel to, and adjoining the plank road, so that it was passable for travellers, and was used by them to pass the gate, to the prejudice of,, and loss of toll to the company; held, the court might restrain the defendant by perpetual injunction from keeping his road open, or permitting it to be kept open, so as to be used for the public travel; and order that it be so closed, as to hinder persons travelling on the plank road from using it as an open road.'

§ 2. Equity will not, on the application of trustees of a turnpike road, passing over a hill, who were empowered to lower it when necessary, restrain an adjoining freeholder from making a tunnel under the road, on the ground that it would obstruct the future improvement of the road.

1 Auburn, &c. v. Douglass, 12 Barb. 553.

2 Cunliffe . Whalley, 17 Eng. Law and Eq. 503.

§ 2 a. If a city (in Massachusetts), laying out a street so as to compel the removal of buildings, assess to the owner a certain sum in lieu of all damages for such removal; his remedy, if aggrieved, is by petition for a jury, not by injunc

tion.'

§ 3. The remedy of injunction, as of other forms of action, is often invoked in reference to railroads. Many of the rules of law upon the subject will be found referred to in other connections; more particularly in the chapter-XV.-relating to corporations.2

4. In a late case it is remarked, "I think it most essential to the interests of the public, that such jurisdiction. should exist, and should be exercised whenever a proper case for it is brought before the court, otherwise the result may be, that, after your house has been pulled down, and a railway substituted in its place, you may have the satisfaction, at a future period, of discovering that the railway company were wrong." And in another case, where, after an injunction against a railroad company, restraining them from so constructing the railway as to obstruct, impede, or render less secure the road in question, the defendants laid permanent rails, on a level, and by order of the commissioners erected gates and opened the line; upon the ground that "their conduct was at once contemptuous and otherwise illegal, wrongful as against the plaintiff, her Majesty's subjects at large, and indeed a bad, almost a scandalous example-a daring invasion of public and private rights;" the court ordered a sequestration."

§ 5. In the State of Pennsylvania, the equity power of injunction was disclaimed in reference to a railroad corpora

Nichols v. Salem, 14 Gray, 490. See Gregg v. Baltimore, 14 Md. 479; Spooner v. McConnel, 1 McL. 338; M'Arthur v. Kelly, 5 Ohio, 139; Mayor, &c. v. Curtis, 1 Clarke, 336; Agar v. The Regent's, &c., Coop. 77; River, &c. v. North, &c., 1 Railw. Cas.

Penn. 378; Amelung v. Seekamp, 9 Gill & J. 468; Jarden v. Philadelphia, &c. 3 Whart. 502; Browning v. Camden, &c., 3 Green, 47.

3 Per Lord Cottingham, River, &c. v. North, &c. 1 Railw. C. 135.

The Att'y, &c. v. The Great, &c.,

135; Sandford v. The Railway Co., 24 3 Eng. Law and Eq. 263.

tion, by reason of the restrictive terms of an express statute; but the observations of the eminent judge, who delivered the opinion of the court, indicate the practical value and importance of this summary jurisdiction.

§ 6. In the case of Hays v. The Pennsylvania Railroad,' it was held that the equity powers of the Supreme Court, in reference to corporations other than municipal, by the statute of 1836, if not restricted to Philadelphia, are no where any greater than those of a Court of Common Pleas. Hence the Supreme Court, sitting at Harrisburg, cannot control the doings of the Pennsylvania Railroad beyond the county of Dauphin. Gibson, C. J., remarks, "Had the power been conferred upon the Supreme Court alone, it would have enabled us to retain the present bill, but, conferred in the same clause upon the Common Pleas, it leads irresistibly to the conclusion that the design was to give them exactly the same jurisdiction. The Supreme Court, standing on a foundation no broader, and exercising a jurisdiction not more extensive than the foundation and jurisdiction of a Court of Common Pleas, could not supervise or control the proceedings of a corporation whose field of action extends from the Susquehanna to the Ohio.-'Noscitur a Sociis.' It is unnecessary to ask why such jurisdiction has been withheld. It has been the policy of the legislature, from the foundation of the province, to dole out equitable power to the courts with a parsimonious hand. Happily this policy is fast yielding to a more enlightened one. Though the power to issue writs of injunction is a despotic one, which ought to be exercised in the first instance with great caution and only in the clearest and most indisputable cases, it is an invaluable and indispensable one. A writ of quo warranto would lie in a case like the present; but the object of a corporator is not to destroy the charter, but to preserve it. Gigantic corporations may acquire, from combination of capital and the patronage they create, a dangerous influence; and the legislature could curb it only

1 17 Penn. 9.

by the instrumentality of the judiciary; but to make the instrument effective, would require it to be invested with an adequate degree of power."

§ 7. The granting of a right of way to a street railroad, by the common council of a city, is not an act of legislation, but a grant upon condition, and may be restrained by injunction. But an injunction has been refused when applied for upon the ground that a railroad charter was unconstitutional.3

§ 8. The question of injunction often depends upon the judgment or action of some tribunal other than the court to which the petition is addressed.

§ 9. In New Jersey, though, in the opinion of the chancellor, the Somerville and Easton Railroad Company could not apply for commissioners of valuation and damages until the route of the whole road should be located; yet he refused an injunction to restrain the company from applying for commissioners to value a part located, before a location of the whole route. And it is said an injunction lies to restrain the opening of a road, where the railroad commissioners had ordered a postponement of such opening."

§ 10. Upon the question of arching over a street in connection with a station, an action was ordered before the Barons of the Exchequer to settle the point whether "it was necessary or reasonably convenient." Upon their answering in the affirmative, held, the injunction should be dissolved."

§ 11. Questions of engineering are ordinarily referred to an engineer.?

Doughty v. Somerville, &c., 3 4 My. & Cr. 116. Halst. Ch. 51.