I concur in nearly every part of the opinion read by my brother, the Chief Justice, and in the decree that is about to be pronounced, and it would have afforded me great pleasure to have had the concurrence of my brethren in pronouncing one more stringent in its requisitions.
The defendants were incorporated in 1842 to make a railroad from Erie to the state line on the east, and it is very plain that the sole thought that was in the mind of the legislature, in incorporating it, was to provide a means of commercial connexion between the harbour of Erie and the state of New York. It is very plain, also, that this company has turned almost entirely aside from this purpose to one that was not at all intended, and, with the aid of that fraudulent concern, the Franklin Canal Company’s road, they have carried out their own main purpose of forming a connexion between Ohio and New York, and have converted the intended and proper terminus of their road into little better than a water station.
And in the course of their proceedings, they have shown very little regard to the public authorities of the state. Contrary to law, and in violation of the express orders of the road commissioners, they took possession of a part of the Buffalo or Ridge road, and used it according to their own will. And much of the same disregard of the public authorities has been exhibited in their relations with the public officers of the city of Erie. Though a mere private corporation, and operating for the purposes of gain, they seem to have assumed that the regular local authorities must stand aside for them, as if in the presence of their official superiors. I discover very little palliation for their errors, and should have been willing to allow them much less indulgence in the mode of retracing their steps.
I am sorry that my brethren think that when an incorporated town or city is made the terminus of a railroad, the company has, by implication, a right to carry their road to any point within the town or city, and along any of its streets that they may choose, and this without being at all subject to the direction or restraint of the local authorities. I should have been pleased to have the concurrence of my brethren in a contrary doctrine. It seems to me that this is giving to mere private corporations or associations a superiority thus far over those public functionaries to whom the *362interests of the public are intrusted, 'and this, too, by no necessary implication. It seems hard enough to have to make such an implication in relation to a town or city that lies between the termini.
Let it be called illiberal to break the connexion between this road and the western one. This is a matter not for us, but for the legislature to consider, and perhaps they have done so. It is not impossible that we may allow the cry of illiberality to drive us into a Quixotic and impracticable cosmopolitism. State pride, state enterprise, patriotism, is selfishness; but it is the very form of selfishness that is at the bottom of all national glory. I trust that it is not to be frittered away by the mere American feeling, which is always tending to obliterate the local and more effective feelings out of which our present liberties grow, and upon which they depend.
Knox, J., concurred. Lewis and Woodward, Js., dissented.At the sitting of the Supreme Court in Erie, in September subsequent to the making of the foregoing decree, plans and specifications for the change of their road in Erie and Harbour Creek, in pursuance of said decree, were presented by defendants to the court and their approval moved.
The counsel for the Commonwealth filed the following exceptions :—
1. That the plan proposed for the change of route in Harbour Creek, only proposes a partial removal of the railroad from the Buffalo road, leaving one portion of the last-named road occupied by the railroad as it was prior to the decree.
2. That a location of the railroad should be north of the Buffalo road, and not south of it, as proposed.
3. That the proposed location at and within the city, will obstruct the streets of the city, and will entirely occupy Twelfth Street to Millcreek with turnouts, switches, &c., and as the population of the city increases, will greatly and injuriously interfere with the trade, commerce, and business of the city.
4. The proposed terminus will be on Twelfth Street, within the old borough limits, at which point defendants’ water stations, &c., must be erected, which will necessarily obstruct and almost exclusively occupy the same, contrary to the decision of the court and the prohibition contained in the charter of said company.
5. The said railroad should be located and constructed to the harbour, whence it could be taken without obstruction to the streets of the city, and where an authorized connexion with the Western Road can be made as soon as the same may be constructed to said point, by the Erie and North-East Railroad.
6. The harbour of Erie is the legal point to which the railroad' should be carried.
*363And the case was afterwards argued at Pittsburgh; and the court thereupon rendered the following opinion and decree:—
Black, C. J.—The bill in this case complained that the Erie and North-East Bailroad Company had violated its charter. We heard the case fully and I may add ably argued by counsel on both sides, at Philadelphia, in July. We held it under advisement until our meeting here in September, and then gave as the result of our deliberations, an opinion that the charter had been violated by the company. It seemed to us too clear to admit of doubt that the allegations of the bill were sustained in these particulars,namely: 1. The defendants were bound by the act of incorporation to make their western terminus at or within the borough of Erie as it was in 1842; whereas it was fixed sixty perches southward of the south line. 2. Even if its location southward of the old borough had been in itself lawful, it would have been rendered unlawful by the manner in which the streets of the city were impeded and obstructed. 3. The railroad occupied the Buffalo road in such manner as to make it useless and impassable, in direct contradiction of the charter. The decree which followed this opinion could clo nothing less than reqrrire the road to be taken up at those places where it was adjudged to be illegal, and reconstructed in such manner as to conform to the requirements of the charter. We made such a decree, and there we might have stopped. In strictness our duty would have been done by simply commanding the defendants to re-locate their road so as not to violate the act of incorporation again, and leave them to disobey' it if, they dared to encounter the peril of doing so. We were not bound to tell them beforehand what new location would be lawful and what unlawful. But it was plain that a dispute like this could not be so settled; The company might commit another error, and if they did not, the attorney-general might suppose they did. In either event the contest would be renewed, and misconstruction of the charter would be made worse by misapprehension of the decree. For these reasons it was thought best that we should order the plan of reconstruction to be submitted to us before it was executed, giving to the counsel of the state the right to be heard in opposition; so that when it was approved the company might proceed in security, and the objection of all other parties be silenced so far as the authority of this court could silence them.
In pursuance of the decree a plan has been submitted by the company which the counsel for the Commonwealth object to in strong terms, and insist that the company should be compelled to make the road according to another and a widely different plan prepared under their direction. The principles by which we are *364to settle this question are very plain. We sit here as a judicial tribunal to administer justice according to the law of the land. The charter of this railroad company is a part of this law, made on purpose to define the rights and obligations of all parties in this business. Because tbe defendants got outside of the charter, we commanded them to repair their error cost what it might. We listened to no remonstrance grounded on the loss and trouble which it would occasion them. Their plea of policy and public benefit in opposition to law was summarily set aside. All their excuses based on considerations outside of the legislative act which gave them a corporate being were utterly disregarded. We would hear of nothing but the charter then, and we can hear nothing else now. We must give the defendants the same measure of justice that has been meted out against them. The representatives of the Commonwealth “stood up for justice and her bond;” and we awarded her all that we found nominated there, when we adjudged the defendants to have transcended their charter, and decreed that they must bring themselves within it. We will not go behind or beyond that decree, but standing directly upon it, we declare again, that if the defendants comply with their charter, we think it strange that the attoimey-general or anybody else should complain of them.
The act of incorporation requires this road to be made “ from the borough of Erie.” This is obeyed when the road is made from any part of the borough. If the legislature had designated a particular spot as the terminus a quo, we would have ordered it to be made there. But the decree is, what it ought to be, exactly as broad as the charter, and not broader or narrower. They must start at or within the borough. By the plan before us they propose to do so, and this brings us to the point where our control of them ceases. If they had done this at first we could not have disturbed their location, and it will hardly be denied that what would have been lawful then is equally lawful now. That a company which is authorized to make a road from any part of a borough may make it from one part as well as another is so mere a truism that one hesitates to utter it. The discretionary right of fixing the terminus at a definite point within the limits assigned is vested by the organism of this company in the directors. We have it not. We cannot resolve ourselves into a board of directors, nor can we delegate the authority of such a board to the attorney-general and his assistant counsellors. We approve the plan laid before us by the defendants, so far as concerns the location of the terminus, because it does not appear to conflict with any law; and whatever may be our private preference for the other plans, we cannot force them on the company, simply because neither we nor the persons who made them have the legal power to do so. To all the arguments derived from the commercial interests of Erie *365and of the state, we give a full answer when we say that we are here to pronounce the law and not to settle questions of policy or trade. If we had any ambiguous charter before us, equally capable of two different constructions, one beneficial and the other injurious to the public trade, we would prefer the former as being most probably the true intent of the legislature. But that is not this case; for here the charter is not in the least doubtful.
Another objection to this location is more grave, because it bases itself on a provision in the act of incorporation. It is said that the streets would be less obstructed by taking the road down to the harbour than by locating it where the defendants propose. The company is forbidden to make the road so as to obstruct or impede the free use of any street. These words, taken literally and in their strongest sense, would prevent the railroad from being made on the streets at all. But we followed authority in saying they were not to be so interpreted. The defendants have the right to use a street if they take care to obstruct it as little as the nature and character of their improvement will permit, if they create no material or unnecessary impediment — no obstruction which could be avoided by any reasonable expenditure of money or labour. They cannot occupy the whole of a street and' drive the public away from it altogether. But any street which is wide enough for the railroad and the public both, may be used on the terms mentioned. This applies to all the streets — to those on the south as well as to those on the north side of the borough — to streets already built up, and to such as are laid out with reference to the future growth of the town. The defendants in their answer attempted to justify their occupancy of some of the streets by showing that they were wet, low, and little used. But we allowed this to have no legal weight whatever, and added that it made no difference whether it was a main thoroughfare or an unimportant by-street, for this act of incorporation protected all alike. Having administered this rule against the defendants, it cannot be that we are seriously expected to deny them its benefit now when it works in their favour. Their duties and the rights of the public being the same in all the streets, we cannot force them out of one and into another. Nor can we compel them to take their road where no streets are; for the privilege of locating it on streets, if certain conditions be observed, is granted to them by the charter.
A part of this railroad is laid upon and occupies the very bed of the Buffalo road in Harbour Creek township. The defendants propose to take up a part of it and to leave another part, about 800 feet in length (which equally interferes with the Buffalo road), where it is. We cannot see how any distinction is to be made between those two portions of the railroad.. There is in fact no material difference. At both places the public travel is so obstructed that it is turned away altogether. At one the company *366has made a new road, and at the other the people have found a way for themselves alongside of the road they used to travel upon. But in both cases the public is equally deprived of the use of the road. It is idle to talk of laying down a railway on the middle of a common country road, and running locomotives and cars over it constantly, without impeding or obstructing the free use of it by the public. The commonest kind of common sense forbids us to believe that such a thing is at all possible. On the broad streets of Erie — Twelfth Street is one hundred feet wide — it may be done. The clearest evidence of this being an obstruction is found in the fact that no man does use the road as formerly at the place in question. It is true that the travelled way is not far distant, and for ought we know it may be just as good and commodious. But it runs for the most part over private property which may be fenced up any day in the year. We say again that the defendants must govern themselves by the law and not by their notions of public interest. The decree commanded them to take up and remove all that part of their railroad which lies on the bed of the Buffalo road, and they must obey it.
Decree. — And now to wit: Nov. 2, 1854, at the present term come the defendants by their counsel, and after due notice present to the court plans and specifications for a proposed alteration of the route and location of their road so as to enter the borough of Erie as the same was in 1842, at Twelfth Street, along the course designated in said plan, which is placed on file. And the said defendants also present a plan for a proposed change of the route and location of their road where it interferes with the free use of the Buffalo road at Harbour Creek, as designated in a plan on file — which said plans were excepted to on the part of the Commonwealth and argued by counsel, and the exceptions and arguments of counsel being heard, and the court fully advised in the premises, the court do find the plans and specifications first mentioned, the change in the route and location of said road at the borough of Erie, to be in conformity with the charter of defendants, and the decree of this court heretofore made, and do approve the same.
And the court find the plan of the proposed change at Harbour Creek, where it occupies 800 feet of the Buffalo road, not to be in conformity with the charter of defendants and the decree of the court, and do disapprove the same, approving it in other respects. By the Court.
Lewis, J.In order that I may not be misunderstood, I proceed to state the reasons which induce me to concur in the final decree about to be entered in this cause.
When a municipal corporation is made the terminus of a rail*367road, it is not like a tree, a rock, or any other object not liable to any material change, either under the laws of nature or the laws of man. It is more like a river, whose boundaries are changed by accretion and detrition. The rapid increase of population so frequently demands an extension of the boundaries of cities and towns, that such alterations are deemed to lie in the contemplation of the legislature when making enactments, and of individuals when transacting business in relation to them. This is the rule in England, and it is one which applies, with peculiar propriety, to a new country like our own. A contract with a city or borough may be enforced against it, notwithstanding a subsequent change of its boundaries: 3 S. & R. 127. Where new territory is added, the old and the new portions are liable, under the corporate name, for all obligations which existed before; and, having discharged them, the respective portions are left to settle the equities of the case afterwards, between themselves. The ordinances of a borough or city are always made with reference to the boundaries which may exist at the time any act may be done which is supposed to come under their operation. Who can doubt that an ordinance, passed before the boundaries of Erie were extended, prohibiting nuisances in the highways, would, by the mere act of extension of the borough limits, be fully operative over every highway within the enlarged boundary of the corporation ? When a corporation accepts a new charter it retains its possessions, recovers its debts, and is bound by its liabilities, as existing before the change: 1 Saund. 344, note 1. The London and Southampton railway act directs that where a bridge shall be erected for the purpose of carrying any turnpike road over or across the railway, the ascent to such bridge shall not be more than one foot in 30 feet, except where the “present inclination ” of such turnpike shall be steeper. In the construction of this statute, it was held,' that the expression, “present inclination,” is to be referred to the inclination of a road at the time when taken by the company, and not at the time ivhen the Act of Parliament was passed. See Attorney-General v. The London and Southampton Railway Company, 1 Railway Cases 283. When an Act of Parliament, which was passed in 1840, prohibited the erection of any turnpike gate in the town of Taunton, it was decided by the Queen’s Bench that the word “ town ” referred to the boundaries existing at the time the gate was erected, or continued, and not to the boundaries existing at the time the act toas passed. It was declared that “ if a new gate is to be erected in 1870, the trustees were bound to consider whether the road is then within the limits of the town of Taunton, not whether it was so thirty years before:” Regina v. Cottle, 16 Adol. & Ellis, N. S.; 71 Eng. Com. Law R. 412. It is conceded, and has been decided by this court, in the interlocutory decree already made in this cause, that where a city or bor*368ough is made the terminus of a railroad, the whole territory within the municipal limits must be regarded as a single point, and that the terminus may therefore be established at any spot within the limits thus prescribed, according to the discretion of the company. An extension of the boundaries of the municipality is, therefore, nothing more than an enlargement of the discretionary powers of the railroad company, and cannot possibly be a violation of its chartered rights. Even if it were so, it is clear that none but the railroad company itself could complain of it. But in this case the company made no complaint. It took the Commonwealth at her word, and established the terminus within the new boundaries. This, in my opinion, was in exact accordance with the true construction of the statute, as settled by repeated adjudications. But were it otherwise, the state has acquiesced in the location, until the company has fully completed its work, and has expended large sums of money in the construction of the railroad, and in the erection of the necessary buildings for the depot. The road was in full operation, in connexion with another road running west, establishing an extensive line of railway communication from the East to the West, long before any objection was made by the Commonwealth. In addition to this, it should be remembered that the railroad company was bound, under pain of forfeiting its charter, to complete its road within a specified time. That time had expired before this bill was filed. It is now too late to relocate the road, and reconstruct it, so as to save the forfeiture; and the counsel for the Commonwealth plainly intimates a determination to take advantage of the forfeiture, unless the new location shall be so satisfactory as to induce her to waive it. The long acquiescence of the state, with full knowledge of her rights, in this large expenditure of money, made in good faith, precludes her from making objections to the location. This principle applies with irresistible force, wherever it is necessary, in order to save a forfeiture. Forfeitures are, in general, so odious, that courts of justice seize upon slight circumstances of acquiescence for the purpose of relieving against them. But there are positive acts of the state, in addition to her mere acquiescence, which preclude her from making objections to the location of the road at Erie. The Franklin Canal Railroad was connected with the Erie and North-East Railroad, at the very point now objected to, at the time the state seized and took into possession the former road. Instead of repudiating that connexion as illegal, the legislature expressly directed the governor to “ Keep it in repair and good running order, for the accommodation of the public travel and business.” This was done, and the state herself made use of the Western railroad, and derived revenues from its connexion with the other road, at the very point now complained of. This is not all: By an act of last session, the Franklin Canal Railroad has been *369sold for a large price by the state herself, to the Cleveland, Painesville and Ashtabula Railroad Company. It was the very connexion now complained of that gave the Franklin Canal Railroad its chief and almost only value. Without that connexion no such price could have been obtained for it. The sale was made without the slightest intimation in the act authorizing it, that any change was to be made in the Eastern railroad at the point of connexion. On the contrary, there was much in the act to encourage the belief that this connexion, as existing and in use at the time of the sale, was not to be disturbed. Upon the plain principles of common honesty, the Commonwealth ought not now to destroy the value of her own grant, and to deprive her own grantee of the consideration for which a large sum of money has been paid. But apart from the mere justice of the case, the act of the state, in making this sale, has a legal effect which should certainly bind her. The connexion between two railroads is an act which requires the concurrence of both. When a statute authorizes one company to connect with another, the authority, although in different degrees, is necessarily conferred upon both. One is to do — the other to suffer; one is active — the other passive. The sovereign, having authority over both, by ratifying the connexion as to the first, necessarily confirms it as to the last. There is no escape from this view of the case. The legislation of last session, in relation to the Western road, and the acts of the state under it, have ratified and confirmed the location of the Erie and North-East Railroad, at the point of connexion. For these reasons I was opposed to the decree which directed that part of the railroad to be broken up and reconstructed, so as to terminate within the limits of the borough of Erie, as they existed in 1842. The question now is not whether the proposed location is the most advantageous one for the interests of the city of Erie, the company, or the public, but whether it is within the powers of the company, as expounded by a majority of this court. There is no room for doubt on this subject. It is in accordance with the decree, and we have no right to exact more. A railway company has no right to act capriciously, to the injury of others; but where this is not the case, its charter constitutes it the judge of the most convenient mode of conducting its works : The London and Birmingham Railway Co. v. The Grand Junction Canal Co., 1 Railway Cases 224.
I come now to the alteration proposed to be made at Harbour Creek. The power to construct a railroad involves every power necessary to accomplish the object. In a country where public highways abound, it miglit be impossible to avoid crossing them. It necessarily follows that the company has the right to cross them, where they lie in the route of the railroad, doing as little injury as possible, consistent with the legitimate use of the latter. When the superior advantages of railroads are considered, and their capacity *370to promote “the greatest good of the greatest number” is taken into view, it is plain that the limited travel on the ordinary roa'ds ought to make some sacrifices for the advancement of an object of such, extensive and paramount benefit to the community. It has been repeatedly decided that a railroad on a public street is not a nuisance per se. The inconveniences which it occasions are but the natural results of increased commerce and travel. The more a thoroughfare is used for its legitimate purposes, the greater may be the inconveniences to those who have occasion to use it. But while each is so using his privilege as not unnecessarily to annoy others, there is no legal injury to any one, and therefore no legal ground of complaint. The right to cross a public road in the construction of a railroad, is as clear as the right to construct the railroad itself. The angle at which it crosses must necessarily depend upon circumstances. It is certainly not restricted to a l-ight angle where this would require dangerous curves. Short curves in a railroad interfere with that velocity which is the main object of this description of improvement. They also endanger the lives of passengers on the ordinary roads, as well as those in the railroad cars. It is therefore of primary importance that the line of the railroad be straight. This paramount object ought to be secured, if possible, although in doing it the common roads may be crossed repeatedly, and at various angles, or even approached so near as to alarm the horses and cattle in sections of country unused to the noise of the locomotive, or to the grand and imposing spectacle of a long train of cars, filled with thousands of human beings, or freighted with many hundred tons of merchandise, whizzing past them with almost lightning speed. The idea that a railroad must be made crooked in order to avoid proximity to, or crossing an ordinary road, is one which would embarrass and impair the usefulness of this, the greatest improvement in commercial intercourse which the world ever saw. It places an object of minor importance above that which, in its tendency to promote the general benefit, is so far superior as to be altogether inestimable. It places ignorance above science, indolence above enterprise, and the minority above the majority. It is of close kindred with the doctrine that the owners of the adjacent lands have a right to pasture their cattle on the railroad track, and to compel the engineers and conductors to stop a long train of cars while they 'endeavour, by means of sticks, clods, and stones, to drive off, and keep off the cattle long enough for the train to pass in safety.
I have already said that the power granted to the railroad company to construct its road between the points designated in its charter, gives it the right to cross every other road that lies in its route. It has therefore a right to cross the Buffalo road, or to run in proximity to it. In doing so it is bound to so use its privilege as not unnecessarily to interfere with the public highway. It *371has a right to a straight line, free from unnecessary curves, elevations, and depressions. If these must exist in one or the other of the two lines of communication, common sense and the general interest of the community require that they should exist in the ordinary highway rather than in the railroad. The duty to do as little damage to the common highway as possible, consistent with the fair uses of the railroad, carries with it the power to do such acts as are absolutely necessary to avoid such damage. If the common road can be crossed at grade, the body of it must be so altered and constructed as to make the crossing as convenient as possible for wagons, carriages, &c. If the railroad crosses at an elevation too great for this, the common road may be raised to a reasonable degree by embankment, and a bridge substituted for the road; or it may be depressed so as to admit of a passage under the railroad. In both of these cases the site of the road is necessarily changed, and the power to make the change has never been denied. It results from the duty imposed. It is true that these alterations in the site of the highway are vertical ones. But there is no difference in principle between a vertical and a lateral alteration. A change in a horizontal direction is as fully authorized as one in a direction perpendicular to the horizon. They both stand precisely upon the same principle. It follows, therefore, that where the necessities of the case require it, the highway may be removed in a horizontal direction to avoid the obstruction otherwise necessarily created by the railroad. Where the highway is so crooked as to require repeated crossings at inconvenient angles, as appears to be the case with the Buffalo road at Harbour Creek, the right to change its location in a horizontal direction flows from the obligations imposed. In performing this duty the railroad company is bound to purchase the necessary ground, to pay all expenses of construction, and all damages which may be done to private right. No evil can arise from the exercise of this power, which might not be produced by intrusting it to the Quarter Sessions ; or, as is the case in some counties, to road commissioners under special acts. All inferior tribunals are subject to the review and control of the Supreme Court, and the railroad corporations of the Commonwealth are expressly made subject to the “ supervision and control” of the same tribunal. So that if they abuse their power by improperly or unnecessarily changing the location of a public highway, or by the defective reconstruction of it when changed, an ample remedy has been provided by law. The final confirmation of the road, as changed, is decided by the same power that finally establishes the location of all other public highways, by whomsoever laid out.
In England the railway companies under the Consolidation Act of 1845, and under various other statutes, constantly exercise this power. No evil has been found to flow from it. The science, ex*372.perience, and force at command of these companies point them out as peculiarly well qualified for the trust; and the official supervision existing there, as well as here, sufficiently secures the public against any abuse in exercising the authority.
But in this case, even if any doubts existed in regard to the original right of the company to make the change at Harbour Creek, considerations have supervened which ought to weigh strongly with the court in deciding upon that part of the case. The company appears to have acted in good faith under the belief that its acts were authorized by law. It has, so far as I am able to judge, substituted a more convenient road for the one which has been interfered with by the railroad. A large expenditure of money has been made in the construction of one of the best and most extensively useful railroads in the Union. During the time that the company was expending its money in the reconstruction of the Buffalo road, and in the construction of the railroad, the Commonwealth interposed no objection, and the public have adopted and are travelling over the new highway. There has been a long acquiescence in the action of the railroad company. The unauthorized and irregular proceedings of the excited population, in destroying the railroad structures, cannot be regarded as protests by the Commonwealth, which take away the effect of her silence and acquiescence. It has been properly said that, in deciding this case, we are not to look at the action of the local population, or of their authorities, but at the flag under which they are now making battle. They are in the field under the banner of the Commonwealth, and the rights of the state are the only rights which she can enforce in the present proceeding. The assent of individuals, or even local authorities, cannot legalize, nor their dissent invalidate, the location of the railroad.
If the railroad has not been constructed with as little injury to the highway as possible, this is a substantial ground of complaint •which the court should stand ready to redress with promptness and energy. But if the Commonwealth merely complains of a defect of authority in the company to change the site of the highway, and desires on that ground to break up the railroad, although the change has made the public road better than it was before, she is too late. Such an application, on mere technical grounds, could not be granted after such a long acquiesence, and so much money expended, without objection, and in good faith: 1 Railway Cases 436 ; 18 Ves. 515; 2 Dowl. P. C. 519 ; Shelford on Railways 441. But a majority of the judges of this court have taken a different view of this question, and it has been decreed that the railroad must be broken up and reconstructed, so as not to interfere with the Buffalo road at Harbour Creek. The question now is, does the alteration proposed avoid the interference in accordance with the decree ? I think it does. The railroad company has *373been driven by judicial interpretation upon the breakers, and I am unwilling to force it further out of its course than the necessity of the case requires in order to avoid them. The terminus of the railroad, as well as its location generally, must depend upon the condition of the ground, the demands of trade, and a variety of other considerations, which are not the subjects of judicial cognisance.
I regret most sincerely that a majority of my brethren have thought that the proper construction of the charter requires these inconvenient and dangerous deviations from a straight line, in one of the most extensively travelled railroads on the continent. But it is clear that we have no authority to control the company further than to confine it within the limits of its charter. We have therefore no right to deprive its directors of the discretion reposed in them by law; and we cannot compel them to adopt the locations recommended by the authorities of Erie. On this part of the case I fully concur with the Chief Justice in the opinion just delivered. The result is, that the railroad has been seriously injured, and the company put to great expense, while the citizens of Erie have entirely failed in securing the object of their exertions. The change of location thus forced upon the company, will produce no advantage whatever to any one, and least of all to the people of Erie. If this decree could be forgotten, like a judgment in an ordinary personal action, I should feel less mortification at the result. But, in impairing the usefulness of this great thoroughfare of the western world, we have erected a lasting monument. Its voice, like the herdsman’s call, will reverberate along the hills and valleys after the original sound shall have died away; and the light which it sheds upon railroad science,.like that reflected in the evening sky, will remain after the body from which it emanates shall have departed.
Another plan for the location of the road at Harbour Creek was then presented, and an extension of time asked by respondents.
The counsel of the Commonwealth objected, whereupon the court made the following order,’19th December, 1854:—
The defendants in this case having submitted to the court another plan for a change of their railroad, at the place where it interferes with the Buffalo road, it is ordered that the said plan be filed, and seeing no reason to believe that, by this plan, the Buffalo road will be illegally interfered with, or its free use obstructed or impeded, within the meaning of those words as used in the defendants’ charter, we approve it. The said defendants have also, by their counsel, moved for an extension of the term within which the decree required them to complete the change in their work, and we think it reasonable that the time should be extended. It is, *374therefore, ordered that sixty days further time, after the 7th of January next, be allowed the defendants to do the acts and things' which the said decree requires them to perform.
This approval of the plan and extension of the time for executing it does not and cannot, in any manner or degree, affect the question whether the right to make the railroad has been forfeited by the fact that it was not properly made Avithin the time mentioned in the charter. If anything in this Avhole proceeding can have any influence on that question, it was the original decree, and not the orders made at different times concerning the mode of its execution.
Knox and Loavrie, Js., dissented.Several intermediate orders were made at the instance of defendants’ counsel for writs of assistance, and suspending of the decree for the removal of the railroad in the city of Erie. The following was then moved by defendants’ counsel: — ■
And now, to wit, May 17th, 1855, it is moved that the time for executing so much of the decrees of this court in reference to that portion of respondents’ railroad that lies west of Ash Lane, in the c.ity of Erie, be extended until one month after the argument and discussion in this court upon the bill No. 7, of December Term, 1854: The Cleveland, Painesville and Ashtabula Railroad v. The City of Erie et al.
21st May, 1855. Motion allowed. Knox, J., and Loavrie, J., dissenting.
The following opinion was afterwards filed, delivered by
Black, J.It was thought at first that the decision of the majority on this motion Avas so simply just and necessary that it might well be left to vindicate itself. But the want of-unanimity in the court has convinced some of us that our reasons ought to go on record.
By the decree of November last, the defendants were commanded to change the terminus of their road so as to bring it within the limits of the old borough of Erie, as their charter required. To prevent the now location from creating a new dispute, we ordered that it should be made on plans to be previously approved by the court. When these plans Avere submitted, the counsel who argued the cause for the Commonwealth appeared before us with plans made out under the direction of the city of Erie, and asked us to approve none else. We could not do this without taking from the defendants the privilege plainly given in the charter of selecting their own location within the prescribed limits. We could not, and of course we did not, appoint the city councils to act as directors of the railroad company, instead of the directors chosen by the stockholders. Nor did we assume the authority to act as directors' *375ourselves. The attorney-general had asked us to enforce the laws of the Commonwealth, and had no show of right to ask for anything more. The law was obeyed by going within the borough. If that was not sufficient to satisfy the people of Erie, it was the fault of those who passed the act of incorporation, and not ours.
A time was fixed by the decree within which the change was to be made. We were afterwards satisfied by the fullest proof that the time first allowed was not long enough under the circumstances to finish a work of that magnitude: and we extended it. The further extensions since that time being allowed in the face of a very earnest opposition, and on grounds not at all foreseen at the date of the decree, require a somewhat minute explanation.
The Erie and North-East Railroad, running westward from the New York line, connects at Erie with the railroad built by the Franklin Canal Company, which was forfeited to the Commonwealth and sold to the Cleveland, Painesville and Ashtabula Company. Without this connexion neither of the roads would, for the present, be able to do the business it was intended for. Certainly a break would cause an immense loss and very great inconvenience to the proprietors and to the public. When, therefore, the. lower company was about to finish its new track and take up the old one, it became absolutely necessary for both that the upper company should meet the lower at the new terminus. The Cleveland, Painesville and Ashtabula Company claimed the right to form this connexion under the contract by which it purchased the work from the state. But the city councils denied that any such right existed. Here was a most important dispute, involving on the one hand the probable ruin of two railroad companies, and on the other a very great amount of local glory to the town councils. The companies professed to be confident in the legal foundation of their claim. The very learned and highly respectable counsel for the city candidly admitted before us that the question was doubtful. And how did the councils propose to settle this doubtful right ? By main force; by the unerring law of the strongest; by the convincing argument of blows and knocks; by the profound logic of pulling down bridges and tearing up rails. Do they expect us to approve of this? Not they. It would surprise them as much as others to find us sanctioning anything of the sort. They know perfectly well that courts of. justice were instituted to prevent the necessity of such irregular appeals to brute strength. The time has gone by when doubtful rights were tried by the ordeal of battle: the experience of mankind has demonstrated that the righteous cause and the strong arm are not always on the same side.
We are not denying that a public nuisance may be abated without waiting for its condemnation by a legal tribunal, provided it can be done without endangering the public peace, and provided *376also that it be a clear case, and free from all complication with other interests. But where a body of men take it upon themselves to be their own judges and their own executioners in a matter like this, affecting in some degree the trade of the whole country, and where it may turn out after all that the claim of right they are opposing is legal, they ought to know that they are assuming perilous responsibility. Even in a clear ease, if the wrong be persisted in under an erroneous belief on the part of the wrongdoer that he has the law with him, an appeal to the judicial authority is the preferable mode of redress, and should be en-: couraged. The use of physical force as a means of reaching the justice which the law would administer without it, is to be discountenanced in every possible way, for reasons perfectly obvious to all who love order or have any regard for the safety of human rights.
The directors of the Western company have the right to connect with the other, or else they have not. If they have such right, the violent and forcible interference of the city with its exercise is illegal, mischievous, and dangerous to all concerned, in •ways which I will not stop here to describe. If the company was wrong, the councils could have demanded justice in the regular way, and waited hopefully for the decision. It might have postponed their triumph a little while, but their superior wisdom would have been vindicated all in good time, and with rather more effect than it can be by any number of bludgeons in the hands of their constabulary force.
It is contended that this violence is justified because it puts the city in a better position, and the company in a worse one, before the court — that if the connexion were once formed the company might plead its expenditure against a bill to change it. No doubt this argument was made in the purest good faith. But a little reflection will satisfy every one that it is not sound. When did a majority of this court — when did any court in the state — ever refuse to bring a corporation within its charter ? When did we fail to give the benefit of every doubtful word to the public ? When did we hold that a wrong was sanctified by the money expended in its perpetration ? I think we may safely assure the city councils that their mode of conducting hostilities has neither diminished the ultimate chances of their adversaries nor increased their own claim to peculiar favour.
But it was our duty to deal with the matter as we found it; and so we did. When the Western company filed their bill in this court and moved for a preliminary injunction to restrain the city authorities and their adherents from the violence used and threatened, we could not grant it nor consider the merits of the question between them, for reasons which were then fully stated and need not now be repeated. We were obliged to leave the par*377ties in their original attitude, the plaintiffs claiming what they asserted to be a clear right under a contract with the state, and the defendants asserting that it was doubtful, and avowing their determination to prevent its exercise by force. Meanwhile the time allowed for the execution of the decree against the Eastern company, was running rapidly out. When that company should be compelled to take up its old track and run exclusively to its new terminus within the borough, the break so disastrous to both would necessarily take place. It was thus that mere physical strength was about to defeat what might be a legal right for aught we could then know. In the best aspect, it was anticipating the decision of the proper judicial authorities. Considerations which we could not disregard without setting a precedent which we deemed dangerous in another way, made us powerless to restrain the councils and their adherents by any direct interference between them and the Western company. Then it was that the simple plan was suggested from the bench of extending the time allowed the Eastern company to change its track. This at least was within our power. If the new connexion must be prevented by force, the old one might be preserved by law until the rights of the parties could be ascertained and determined.
A motion to that effect was made by the counsel of the companies. It was opposed not only with ability but with some ardour.
The city of Erie and its representatives were not content that there should be any connexion at all. It seemed a part of their specific object to do the companies as much mischief as possible, while the questions between them were still subjudiee and the right unsettled. Perhaps this was natural in men whose passions had been heated by a long and fierce contest in which they had suffered some wrongs. But it was not for us to gratify them.
When a bill in equity is filed, it becomes the unquestioned right and plain duty of the court to keep the subject-matter of the dispute as nearly as possible in statu quo. Here the important matter was the connexion of the roads. We found the two companies in the possession of a continuous railroad. The object of one party was to break it up — that of the other was to preserve it. Which had the right it was impossible for us to say before a final hearing. Until then we simply let it stand as it is. In due time it will be broken, if an Act of Assembly cannot be produced giving the right in plain terms. Otherwise the company will be protected, as it ought to be.
Against this course two points were pressed in the argument:—
1. That we had no authority to relieve the Cleveland, Painesville and Ashtabula Railroad Company, by making an order in another case against the Erie and North-East Railroad Company. 2. A part of the latter company’s railroad being pronounced illegal *378and a nuisance, to give time at all for its removal is wrong, improper, and without the sanction of the law.
The first of these propositions is not supported by any authority or precedent. It is not embodied as a rule of practice in any case of procedure that we know of. Nor is there any principle of justice, convenience, or policy which requires us to adopt it. Two railroads are threatened with ruin — it may be undeserved ruin — which ought to be averted at least until their doom is legally pronounced. They are before the court in separate proceedings. Our hands are tied in one case, but in the other we have full power. We are asked to make an order in the latter case, and it is objected to, because it will effectuate the whole pur.pose too well. The argument in substance is, that we must wrong both for fear that both may be righted. It would be very unfortunate if our consciences could be touched in that way. The more ground the order may cover, the more it commends itself to our best judgment: Boni judiéis est ampliare jujstítiam. It is the duty of every judge to make a just decree reach as'far as possible, and to give the suitors before him the fullest protection he can in the shortest way that the law has left open. The soundest decisions have done more good incidentally than they have ever done directly.
But it is said that we have no power to give any time whatever for the removal of an illegal railroad. In the opinion of the objecting counsel, we are interfering with the sacred rights of the people if we forbid them to abate a public nuisance whenever they please. If this be true, our whole duty was done in the present case when we ascertained the character of the defendants’ railroad. A decree for its removal was not necessary at all. We should have simply fixed the caput lupinum on the offending corporation — declared it an outlaw, and left it not to the forbearance of the state, but to the mercy of its private enemies. If we had adopted this view in September last, we would have stopped every car with all the passengers and freight on the road, as soon as our opinion could reach Erie by telegraph. Incalculable loss and injury would have been inflicted on thousands of persons guilty of no offence against the state except that of confiding in her justice and honour. But we were not asked to commit any such wanton and unnecessary outrage on innocent parties. It was conceded all round that we should mould our decree in the manner best calculated to enforce the law at the smallest expense of inconvenience and hardship. We allowed what time we thought reasonable under the circumstances then existing, without hearing of this objection. Afterwards, when other facts were brought to our notice, we gave more, and still the idea that we were exceeding our power had not risen to the dignity of a doubt. Now, however, it takes upon itself all the state of an argument.
*379We have the power. Those who deny it forget that the Commonwealth, by the act of filing the bill, placed the railroad under our immediate protection, to guard the rights of all parties in interest, as well as to enforce their obligations. When a public nuisance has become the subject of judicial investigation, the power of a private citizen to remove it is gone. After that no man may touch it with the hand of violence, except in the way and at the time directed by the court having cognisance of the subject. This principle is constantly acted upon by every court of equity in the world. Two years ago it was announced by ourselves with entire unanimity; and obedience to it was enforced against the saíne parties who now again claim the privilege of disregarding it.
When it ivas regularly made to appear that the corporators of the Erie and North-East Railroad Company had violated their charter, we spoke of their acts in the strong terms of reprobation which we thought they deserved. But that decision is not authority for refusing justice to them, or to another railroad comT pany, when they happen to be right. Having once judged them according to the law, it does not follow that we must now command them to be smitten against the law. But the councils of Erie appear to be possessed of the notion that we are ready for anything they may demand. The call upon us to locate the terminus at the harbour, when the opinion was scarcely dry in which we had decided it to be legal' anywhere within the borough, was bold enough. Yet it surprises us still more to be told that we have lost, by our own decree, the power to say when or how it shall be executed; that we must disgrace the equity jurisprudence of the state by admitting that it cannot or will not provide for the safety of innocent persons, when it strikes at the wrongs of the guilty; and that its justice consists in bringing indiscriminate ruin on all alike.
We order that the execution of the decree against the defendants in this case be suspended until the existence or non-existence of the right to form the connexion be ascertained on the hearing of the bill already filed for that purpose by the other company. Of course, this order will be revoked if the bill be not prosecuted with all due diligence. But we make it with the utmost confidence that it is necessary and proper. It will prevent mischief which, if once committed, could never be repaired; it will leave all parties at the final hearing in the same position they were at the beginning. of the dispute; it will enable us then to do, without difSculty, the justice which might otherwise be impossible; and it will save the councils of Erie, themselves, from the dangerous consequences of their own rash and unadvised behaviour.