It appears from the bill, that the defendants claim and exercise the right or privilege of exclusively navigating the waters of Hudson river, with vessels propelled by fire and steam, and that they claim *165and assert that right under certain acts of the Legislature of this State. It is also a fact of public notoriety, and was assumed and conceded upon the argument of the motion, that the defendants, and those from whom they claim to have derived title, have been, ever since the year 1807, in the actual possession and enjoyment of such ex- " elusive right and privilege. It further appears, that the plaintiffs assert no right peculiar to themselves, but only a right common to every citizen, nor do they allege any actual infringement, in their particular case, of that common right. I cannot perceive, then, upon the face of this bill, any just ground for the motion, and it strikes me as being plainly repugnant to the settled doctrine and practice of the Court, to grant an injunction in such a case. Here is a party in actual possession of a privilege, under claim and colour of title, and the Court is asked to restrain him from the use of the means provided by law for the protection of that privilege, and that too, in favour of another party, who sets up no particular right of his own, but contents himself with a general denial of any such exclusive privilege in the defendants. An injunction for such a purpose, and under such circumstances, would be unprecedented. The common right must be first legally established, and the defendants must be first duly ousted of their pretension and possession, by due course of law.
In Pillsworth v. Hopton, (6 Ves. 51.) it was considered by Lord Eldon, as a clear point, that an injunction to stay waste, is never granted against a defendant in possession, and claiming by title adverse to that of the plaintiff. I followed this rule in Storm v. Mann, (4 Johns. Ch. Rep. 21.) Here I am asked to go a great deal farther: I am called upon to prohibit the defendants from availing themselves of their legal remedies, against the invasion of their privileges,- or the trespass upon their rights, which the plaintiffs Mve in contemplation. The plaintiffs insist that the exclusive right or privilege granted by the statute to Living= *166stem and Fulton, has expired ; and the defendants, who are in possession of that right, or privilege, under the original grantees, are holding over, and are in no better condition than tenants at sufferance. But the bill admits, that the defendants pretend to a better title, and assert a valid, subsisting, exclusive right to the enjoyment of the steam navigation, of which they have the possession. This is not the time, nor proper occasion, to try that title. It is sufficient for the disposition of the present motion, that the defendants claim such an exclusive privilege, and that they are in the actual possession and enjoyment of it, by colour of law. It would appear to me to be a very unreasonable, as well as a very unusual exercise of power, to enjoin them from using the lawful means and remedies provided by statute, to protect themselves from trespass, or other disturbance, in the enjoyment of their right, until some better right, adverse to theirs, shall have been previously established. The consequence of granting the motion would be, the immediate destruction of the exclusive privilege ; for it would be letting the plaintiffs, and all other persons, (for all other persons have the same pretensions,) into the enjoyment of that privilege, before the common right of the public, in opposition to the exclusive right of the defendants, has been judicially ascertained. This would be too summary a mode of dispossessing a party of a right which he has long held and enjoyed.
Motion denied..