The opinion of the Court was drawn by
Appleton, C. J.Railroads may make a connection by virtue of a contract mutually entered into between them, or under the provisions of a statute authorizing such connection.
(1.) If the connection be under and by force of contract, its continuance in certain cases will be enforced in equity. Columbus, Piqua, &c. Railroad Co. v. Indianapolis Railroad Co., 5 McLean, 450; The Great Northern Railroad Co. v. Manchester, &c. Railroad Co., 10 English Law and Eq., 11.
There have been two contracts between these parties, both terminated by the complainants for reasons deemed by them satisfactory. Having claimed and exercised the right of terminating these agreements, they cannot have the aid of a court of equity to enforce the performance of contracts, already terminated.
(2.) The respective rights and obligations arising from a connection, made in pursuance of statutory provisions, can only be ascertained by recurring to the statutes conferring rights and imposing obligations.
By the charter of the Androscoggin & Kennebec Railroad, granted March 28, 1845, c. 270, § 7, the Legislature reserved the power to authorize other railroads, "coming from a northerly or easterly direction,” to connect with that railroad.
By the charter of the Androscoggin Railroad, granted iu 1848, c. 184, § 7, that road was "authorized and empowered to connect, if it shall elect so to do, with the Androscoggin & Kennebec Railroad, at any point in either of the towns mentioned in the first section of this Act, which the directors of said corporation may select; and said Androscoggin & Kennebec Railroad shall receive and transport all persons, goods *435and property of all descriptions, which may be carried and transported to its railroad on said Androscoggin Railroad, at the same rates of freight and toll on such passengers and other property as may be prescribed by said Androscoggin & Kennebec Railroad Company, so that the rates of freight and toll on such passsengers and other property as may be received from said Androscoggin Railroad shall not exceed the general rates of freight and toll on its road received for freight and passengers at any of the deposits of said corporation; provided, also, that the Androscoggin and Kennebec Railroad Company, if they shall elect so to do, are hereby authorized to connect with the said Androscoggin Railroad, subject to the provisions of an Act relating to railroads, approved March seventh, one thousand eight hundred and forty-two.”
By this section either railroad could elect to connect or both could so elect. If either elects to connect and does so connect, it thereby acquires the rights of a connecting railroad and not otherwise.
No definite gauge is established in the charter of either railroad company, and each has the right to make "such rules, regulations and provisions, as the directors shall from time to time prescribe and direct.” Each corporation had by its charter the right to fix its own gauge or to alter it, as should be deemed most conducive to its own interests. .
The Androscoggin Railroad is " authorized to connect, if it_ shall so elect, with the Androscoggin & Kennebec Railroad,” &c. This is not the language of a contract. It is a privilege conferred. When one corporation elects to become a connecting road and the connection is made, it acquires the right to have the railroad, with which the connection is made, "receive and transport persons, goods and property of all descriptions, which may be carried and transported” thereto. The exercise of this right is a matter of election. The continuance of such exercise is equally a matter of election. There is nothing compulsory on the *436railroad thus electing. It is thereby deprived of none of its rights. The electing and connecting railroad enters into no contract. It merely elects to make use of a privilege conferred — to enjoy certain rights. It may abstain from enforcing its rights or claiming its privilege. So any individual may omit or neglect to bring his goods or property to the railroad for transportation.
The duty or obligation thus imposed upon the railroad with which the connection is made, does not restrict it in the general management and control of its road. The obligation to receive and transport is subordinate to the general powers of the corporation to manage and control its property and determine its gauge. It authorized the connecting railroad to require the reception and transportation •of all persons and property it might transport to the rail with which it is connected. It imposed upon the latter only the obligation to receive and to transport. It did not require the former to bring persons or goods to be transported. It left the general rights of the corporation unaffected and unmodified, except as changed in this single respect.
"When, in the charter of a railway company, a right is reserved to the Legislature to allow other railways to connect with the former, upon such terms as shall be l'easonable, complying with the established regulations of such company upon the subject, and, in pursuance of such reservation, a junction is made by a second railway company with the first, which, in faith of such connection, proceeds to make expensive and permanent repairs for the accommodation of the enlarged business thus brought upon its track, it was held that this imposed no obligation upon the second company to continue the connection permanently. And, also, that the second company might lawfully obtain an extension of their own road, so as to do their own business, without continuing the connection.” Redfield on Railways, 436; Boston & Lowell Railway v. Boston & Maine Railway, 5 Cush., 375.
*437But, if it wore assumed that a connecting road could not, at its own election, withdraw a connection once made, the Legislature, which authorized and empowered it to connect, might, it would seem, authorize and empower it to disconnect. This has been done by the Acts of, 1860, c. 386, by which the extension of the Androscoggin Railroad was authorized, and by c. 475, by which it is empowered "to connect with the Kennebec and Portland Railroad To allow a disconnection was, as to the defendants, merely allowing them to surrender a right. To this the Androscoggin Railroad Company cannot object, for they have accepted the provisions of the Act. The complainants thereby have been relieved from a burden imposed. There is no violated agreement of which they can complain.
The complainants allege that they have a vested right to the continuance of a connection once made; that this connection, once established, imposes on the connected road the perpetual obligation of ever continuing the gauge as existing at the time of the connection, and is an interdiction to any future change. If this be so, the obligation and the interdiction are matters of inference merely, and it is difficult to find the language in the charter of either corporation from which such inferences can be legitimately drawn.
But, suppose it to be so, the rights given by statute do not become vested till the election to connect is made. As, by § 7, one of the corporations may elect to connect and not the other, it is manifest there may be an actual connection, in the making of which each may have an agency, while there is but one connecting road — that is, one road which has elected to be such. In the making of the connection, consultations may be had as to the place where and agreements be made as to the mode in which the connection shall be had, without the railroad with which the connection is made thereby becoming a connecting road. Neither road can become such by § 7 without its own election thus to be.
The offer to the complainants, by § 7, to be a connecting road can afford no rights until its acceptance. The statute *438authorizing the election may be repealed. If repealed, before the acceptance of the rights thus conferred, a subsequent acceptance would be of no avail. A repeal may be in express terms or by necessary implication.
The special Act of 1860, c. 475, expressly authorizes the Androscoggin Railroad to connect with a railroad of a narrower gauge. Neither the statute granting the charter of the complainants nor that of the respondents established a gauge for either. The statute c. 475, by necessary implication, authorized a change of gauge. It authorized a connection which could not be made with the gauge then in use. The respondents have accepted the change in their charter, and acted under it by making the connection thus sanctioned. They are entitled to the protection of the law, when in the exercise of their chartered rights.
The special Act of 1860, c. 475, authorizing the connection of the Androscoggin Railroad with the Portland & Kennebec Railroad, was passed and went into effect on 20th of March of that year. This empowered a change of gauge, for it permitted and allowed a connection to be made with a ■railroad of- a different gauge. It was accepted by the defendant corporation — which thus became entitled to all the rights and privileges thus conferred.
The complainants, at a meeting of their corporation, held on 27th of Nov., 1860, voted to "elect to connect their railroad with the railroad of the Androscoggin Railroad Company, at the point of junction of the two railroads in the town of Leeds, in accordance with the provisions for that purpose contained in the seventh section of the Act incorporating the said Androscoggin Railroad Company, approved August 10th, 1848j.and that they so connect.” The president was further directed to furnish, the president of the Androscoggin Railroad Company with a certified copy of the foregoing vote.
. When the-complainants thus, by their vote, elected to become a connecting road, it was after the defendant corporation had been authorized to form a new connection with a *439different gauge, — had accepted this modification of their original charter and had acquired new rights under it. The complainants did not seasonably make their election. They had no vested right arising from any election made when the defendants were empowered to make the change which they have made.
The complainants do not ask for a connection with the road as it now is, with its altered gauge.
The prayer of their bill is, that the respondents may be enjoined to change their existing gauge to that of the complainants. But when the complainants made their election to connect, it was made with a full knowledge of the rights conferred on the respondents by the Acts of 1860, c. 386 and c. 475, and of their probable action under those Acts. The complainants could not, at that late day, so elect to connect as to deprive the respondents of the new privileges thus conferred. If, then, they may claim to connect, it is only in subordination to the rights of the repondents, existing when their election was made.
The privilege of a connection was proffered the complainants. It was not accepted until it was too late. It never vested, or if it did vest, it was a right to connect subject to the changes the defendants were empowered to make in the gauge. But this is not the connection prayed for in their bill. The complainants have shown no vested right in any particular gauge, and have no ground of complaint.
The present bill was filed Sept. 20, 1861, long after the respondents had expended large sums of money in building the extension, and in purchasing cars, &c., for their altered gauge. It does not appear, that the complainants had ever run their cars over the respondents’ track, or had contemplated so doing. , The expenditures, thus made upon the extension, were made with a clear understanding on the part of those controlling the complainants’ corporation of the purposes and objects, for which they were so made. The complainants delayed filing their bill until after this great outlay had been made. After so great a delay in enforcing their *440alleged rights they can neither equitably nor legally interfere. Bill dismissed with costs for respondents.
Cutting, Walton, Dickerson and Barrows, JJ., concurred. Davis, J., dissented. Davis, J.The Androscoggin and Kennebec Railroad Company was incorporated March 28, 1845. In their charter, the Legislature reserved the right to "authorize other companies to connect their railroads with the railroad” of that company.
August 10, 1848, this reserved power was exercised by the Legislature, by granting such right of connection to the Androscoggin Railroad Company.
Generally, such a right is conferred upon one company, as a privilege, and imposed upou the other, as a burden, or servitude. The former may exercise it or not, at its election ; and, if the connection has been formed, it may withdraw and discontinue it, whether the other company consents or not. Boston and Lowell Railroad v. A. and W. Railroad Co., 5 Cush., 375. But the latter company has no such right to disconnect; for that would be abrogating a right reserved, and expressly conferred by the Legislature upon the other company. Such have been the rights and liabilities of connection under all the charters granted in this State, except in the case at bar.
In this case, when the right of connection was conferred upon the Androscoggin Railroad Company, it was provided that the Androscoggin & Kennebec Railroad Company should also have the right to connect their railroad with that of the former company. Such right, however, was not the less absolute in each, because conferred upon both. The former company, it is true, was under no obligation to construct its road. But, having constructed it, the right of the other company, like its own, became fixed and perfect. And this right was thereupon as absolute in each, as it would have been in either one, if conferred upon one only.
*441And' even if this right, in either company, would have been lost, without an election, within any period of time, to exercise it, it was not so lost in this case. For it is not questioned that, immediately after the latter railroad was finished, the two railroads were actually connected, by the joint action, and at the mutual expense, of the two companies. They thereby both "elected” to avail themselves of the right conferred by the Legislature.
Since that time there have been many difficulties and controversies between the companies. Business connections have been formed, and afterwards terminated. Under additional authority, granted by the Legislature, Feb. 15,1860, the Androscoggin Kailroad Company extended its railroad from Leeds to Brunswick; and having constructed the extension upon a different gauge from that of the portion previously made, the gauge of that was then changed to correspond with it. This practically disconnected the railroad from that of the Androscoggin & Kennebec Bailroad Company, by making them of a different gauge. It is for this that the present suit in equity is brought, praying that the former company may be enjoined to restore- the rails upon their road to the same gauge as before, so as to make the connection available as it previously existed.
It is contended in defence, that the charter confers no right except to a business connection ; and that, if it is held otherwise, the right is not perpetual.
A busmess connection can be predicated of the companies only; the railroads may be connected physically. Either may exist without the other. The former is necessarily a matter of contract; the latter can be obtained only by contract or by legislative grant. For every company, except as limited by its charter, or by general statute, has the exclusive control of its own track.
Business connections are common in this country, not only between companies owning intersecting or adjacent railroads, but between companies that own roads widely separated. Freight and passengers are transported long dis*442tances upon one ticket, oí by one contract, made by one company for itself and others. No legislative grant is necessary for this purpose. The details of any such arrangement are necessarily so diversified and fluctuating, that it cannot be supposed that the Legislature would ever attempt to grant any such right.
And the express terms in which the right of connection has been reserved or granted excludes the idea that it is a right to a business connection. It is a connection of the railroads and .not of the companies. In nearly all the numerous charters granted between 1835 and 1842, the Legislature reserved the right to " authorize any other company to correct any other railroad with the railroad of said corporation, at any points of intersection on the route.” In 1842, the general statute required every railroad corporation to draw over its railroad the cars of any other company, " which has been or may be authorized by the Legislature to connect their railroad with the railroad of such corporation.” And, in case of refusal, the company having the right of connection was authorized to " draw its own cars over the other road, with its own locomotive.”
This language clearly relates to a connection of the rails, and not to any business arrangements. And, in subsequent charters, the language is still more clear and definite, giving the right of connecting other railroads " coming from a northerly or easterly direction,” as in the case before us ; or " on the easterly side thereof,” as in the charter of the Atlantic and St. Lawrence Railroad Company. By the right of connection, therefore, is meant a physical connection, by which trains can pass from one railroad to the other. Such a connection was actually made between the two railroads in controversy, by the joint action of the companies, in 1852 ; and that connection continued, without interruption, until September, 1861, when it was interrupted by the change of 'gauge complained of in this suit.
Is the right of connection, when thus reserved and granted by the Legislature, perpetualf Or may the company *443subject to such connection in any way interrupt or terminate it? •
That a railroad company may be bound by its contract, therefore, to maintain a connection perpetually, there can be no doubt. But, in such cases, the perpetuity of the connection must appear by the contract to have been intended by the parties. They are not held to be perpetual from the nature of the connection; nor from the interests involved in it; but because the parties have agreed that they shall be perpetual. And this applies as well to cases in which two companies agree to connect their railroads, so as to run trains from one to the other, as to cases in which such companies agree to a business connection, either with or without any connection of their roads, by a junction of the rails.
A right, which a company has, to connect its railroad with that of another company, originating, not in any contract, but reserved and granted by the Legislature, if the roads are, and continued to be, of the same gauge, is in its nature perpetual. It is like a reservation in a deed, or the grant of an easement. Like any other light under the charter, it cannot be abrogated or lost, except by a forfeiture of the charter itself. A reservation made in a grant, or a condition annexed to it, is an inseparable incident of the thing granted; and this familiar principle is as applicable to grants of corporate rights, powers, and franchises by the Legislature, as it is to other grants.
What, then, is the extent of the right so reserved and granted ? What construction is to be given to the reservation and the grant?
It is obvious that the general statute, first enacted in 1842, and all provisions in railroad charters relating to connections of different roads, assume that the tracks to be connected are of the .same gauge. We have assumed it, thus far, in discussing the questions involved in the case before us.
But is a company, with whose road another is connected, not by any contract, but by authority of the Legislature, thereby forever bound to retain the same gauge ? It is gen*444erally the right of every company, under its charter, to fix the gauge of its own road, and to change it at pleasure. Is this right annulled or abridged by reserving the right of connection for another company ?
It may be said that the Legislature never intended to annul or restrict this right in any such case, and that a reasonable construction of such provisions of charters, and of the statute, does not lead to such a conclusion. Such statutes and charters assume that the roads so connected are of the same guage; and while they remain so, the right of connection is absolute, and perfect. Nor would the company subject to such a connection be allowed wantonly to change the gauge of its road, for the purpose of interrupting the connection. But was its right to fix or change the gauge of its own road intended to be taken away ? Acting, not wantonly, but in good faith, for the reason that another gauge is better, or for the purpose of making another connection, more profitable for the company, or for the better accommodation of the public, may not such company change the gauge of its road, although the previous connection is thereby practically interrupted ? Is not the right of connection granted to a railroad company intended to be subject to such a contingency ?
Whether the defendants have been free from fault in all matters, we need not determine. In changing the gauge of their railroad, there is no evidence that they acted wantonly towards the plaintiffs, or with any improper purpose. Under authority given by the Legislature in 1860, they extended their road, so as to form a connection with the road of another company, of a different gauge. The change in the gauge of their road was not made for the purpose of breaking the previous connection, but for the purpose of making one with another railroad, which could not be done without it. Had they the right to do this under the general powers conferred by their charter ?
Upon this question, my own mind is not free from doubt, though I am inclined to the opinion that a right to connect *445two railroads, reserved in the charter of the first company, and granted in the second, is, in its nature, absolute and perpetual; that the right of either to change the gauge is subject to this, and not this to that; and that the former is paramount, and must control the latter. But my associates are of a different opinion; and I do not feel very confident. My dissent is not so much from their conclusion upon this point, as upon the nature of the right conferred by charters, in which the right "to connect” is granted.