The opinion of the court was delivered, May 13th 1867, by
Agnew, J.— This is a bill in equity to restrain the defendants from proceeding to construct a railroad upon the farm of the plaintiff. The plaintiff alleges they have entered and are unlawfully constructing their railroad without his consent and without payment of a compensation or giving him security therefor ; and that their acts, if persisted in, will do him great and essential injury. The answer of the defendants justifies under an alleged agreement to permit them to enter and construct their railroad, provided they would do so on the west side of the brick house near Bethlehem, against the hillside, and high enough to save his water-power, which the answer alleges he estimated at eight feet above low-water mark;' and avers that they accepted this condition, and have proceeded to perform the same, and are constructing the road high enough to save complainant’s water-power, to wit, eight feet high above low-water mark. Thus the height of the grade, to avoid injury to the water-power, is an admitted condition of the right to enter and construct, but the height is alleged to have been estimated at a given number of feet.
The defendants called two witnesses to prove the alleged license, both of whom were stockholders who had assigned their stock for the purpose of being witnesses, one to his wife, and the other to his son, a portion of his subscription being yet unpaid. They were objected to, and were of doubtful competency; but it is unnecessary to decide this question. According to the testimony of one, the plaintiff said to Mr. Brodhead, the president of the company, in a conversation about changing the route of the survey, “ If you go down there on the other side of the brick house —west side — and do my house no harm, and on this side do my water-power no damage, then go on. I have quarried stone for a mill and still-house, and if you stay up there on the west side between me and Kemmerer, just go on and make the railway. I will ask nothing.” The other witness says, “ Mr. Unangst then *136told Mr. Brodhead that if they would change it (the route) to bring the road high enough not to interfere with his water-power, they should just go on with the road; that if they stayed up high enough he would not charge much or anything.” Neither of these witnesses — and they are the only witnesses of the alleged consent — testifies to any estimate being made by the plaintiff of the height of the grade necessary to save his water-power.
The defendants gave no proof whatever that the road was being built high enough to avoid injury to the water-power. The proof of both of these facts, the estimate of height alleged, and that the height in Tact did no injury, lay on the defendants: Purdy v. Wright, 7 Casey 387. Thus both answer and proof concede that the express condition of the right to enter and construct before compensation or security rests on making the grade high enough to avoid injury to the water-power, while no proof of a sufficient height was given by the defendants. But the plaintiff proved expressly by two witnesses, one of whom was an engineer who had levelled the height of the water and of the grade of the road, that the water in the stream could not be dammed up to the water-level of the old dam at the forebay without submerging the railroad from five to six feet.
The master decided the case, on the fact that the railroad was located and being constructed on the west side of the brick house, substantially on the route indicated by the plaintiff in his conversation with Broadhead.
But he does not find the fact, or notice in his argument, that the grade was high enough not to injure or interfere with the plaintiff’s water-power. He argues that defendants having a legal right of entry, and the plaintiff having consented to their entry and construction of the road at the place designated by him, he waived his right to compensation or security before entry; and, if entitled to damages at all, he must seek compensation in the mode pointed out by the charter. His argument, however, overlooks the fact that the legal right of entry is subject, by the amended constitution, to the condition of compensation or security before it can be exercised; and that the alleged waiver was made upon a fundamental condition involving this very right of compensation, by preventing the injury which would call most loudly for it. The condition of waiver was of prime importance to the plaintiff.
He saw a line of the road surveyed which would ruin his waterpower, and he said to the president, “ Change your route and go over there and raise up your road high enough to do my waterpower no injury, and I will ask no damages or not much.”
The object of his consent was to save his water-power — going over to the hillside was but a means to that end. To ruin his water-power was to do him irreparable and serious injury.
*137To save it was to render the injury almost inappreciable. It needs no argument to show that to violate this feature of the agreement, was to ignore the fundamental condition that procured his assent to the entry and construction of the road without compensation or security first made.
Yet the master either overlooked, or attached so little importance to this fact, that he did not even mention it. But he concedes the principle in his argument. He says it is urged that the landowner is not remediless because of his consent to an entry on his land for railroad construction. Certainly not (he replies), if there be a plain and palpable violation of the privileges granted; as a right to cross one end of a farm does not justify entry and construction across the middle. But (he proceeds to say) when the road is laid out and constructed nearly or quite upon the designated route, the complainant cannot claim an injunction against the necessary consequences of such construction. But this is the very mistake. Destruction of the water-power is not the consequence of construction upon the designated route, but of construction in violation of the designated grade, to wit, an elevation sufficient to save the water-power. A deviation from the route he concedes to be a violation of the condition of consent; but deviation from grade, which is the all-important matter, he seems not to have thought of.
The route was prescribed for the very purpose of raising the grade and of reaching the level necessary to preserve the power. It was the single thought of the plaintiff, and he stated that he hauled the stones and was going to build a new mill and a distillery. In his short conversation he was distinct in his utterance, that if the route was changed to “ bring the road high enough not to interfere with his water-power, they should just go on with the road.” It then became the duty of the company to examine the designated route to ascertain whether it would suit their purpose, and carry the road up to the required elevation without too much expense. If it did not suit their alignment, or if it would require too great a fill to reach the proper elevation, they need not go on under this license, and had it in their power to enter and construct the line to suit themselves, by giving the security or making the compensation necessary to entitle them to proceed.
It is insisted by the plaintiff that the license was not binding, it being neither expressly accepted nor reduced to writing. It is unnecessary to decide these questions, but they lead to some comments upon the facts. According to the defendants’ two witnesses, not a word was said by Brodhead in reply to the plaintiff. He neither said he would accept the terms nor promised to fulfil the condition. The master rests this part of the case wholly upon the subsequent change in the line, and the proceeding to construct on *138the indicated route. But the conduct of Brodhead required notice. Though he had said nothing in answer to the plaintiff, he followed Herman, the witness who had gone forward, called him to stop and said: “ Have you noticed the words this man spoke ?” Herman said yes, and Brodhead said no more. This evidently looks more like a catching bargain than a fair and open effort to obtain the plaintiff’s consent. The absence of a writing under these circumstances, and of any assurance on the part of Brodhead to observe the condition, does not look well. When a railroad company asks to divest a citizen of rights sacredly guarded by the constitution, it is the least it can do to come into court, if not with a writing, with full, distinct and unequivocal proof of the waiver it alleges. The only question remaining is, whether equity will interfere to prevent the injury. Of this I cannot doubt. After the construction of the road the plaintiff cannot build up his dam, for this would submerge the road five or six feet, and make it impassable. He would then have to put up with uncertain damages, and the. risk of collection, as well as its difficulties and delays. He is not bound to yield his undoubted right to previous compensation or good security, and it would be most inequitable to force him into this position.
A corporation obtaining a concession to enter on condition of refraining from a particular injury, in its nature irreparable, and which cannot be readily estimated in damages, forfeits its license when it violates this condition, and should be restrained until it does equity. It comes under that head of equity power which extends to the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community, or the rights of individuals. The act in this instance, if continued to be done, is in its effect upon the rights of the plaintiff of the same nature as waste. Even a tenant without impeachment of waste will be restrained from doing unnecessary and injurious waste: 3 Daniels Chan. Pr. (1865) pp. 1737-38.
The diversion of streams, obstruction of watercourses, back fiowage on mills, pulling down river banks, &c., will be enjoined.
So a corporation abusing its privileges, or encroaching upon rights of possession and property, will be enjoined: 2 Story’s Eq. §§ 927, 928, 929. A partner having a legal power over partnership property will be restrained from using it contrai'y to equity: Stockdale v. Ullery, 1 Wright 486. See also Commonwealth v. Pittsburg and Connelsville Railroad Co., 12 Harris 159; Denny v. Brunson, 5 Casey 382; Jarden v. P. W. and B. Railroad Co. 3 Whart. 502; Tramson v. N. and E. Railway Co., 2 English Railway Cas. 380; Palmer v. Graham, 1 Pars. Sel. Cas. 476. Equity powers are to be interpreted liberally: Kirkpatrick v. McDonald, 1 Jones 393; Yard v. Patten, 1 Harris 282.
*139Pusey v. Wright, 7 Casey 387, differs from this ease in several important particulars. The consent given to enter and construct the road was not founded on a fundamental condition essential to preserve the property from irreparable injury. That part of the case was wholly unsupported in the proof. The case fell down to the alleged neglect to perform certain subsequent stipulations, such as were mere matters of contract, and could be compensated readily. The entry was not only permissive, but the plaintiff permitted the road to proceed to completion without his dissent. In the present ease, as soon as the plaintiff discovered that the road was not to be elevated sufficient to secure his water-power, he served a written notice to leave the premises and desist from trespassing, or to give that security which the law requires.
The plaintiff has therefore shown his right to enjoin the defendants from proceeding further until they have given him security for his damages, or that they will raise the road to such an elevation as will save his water-power from injury.
And now, May 13th 1867, this case having been heard, it is now, upon due consideration of the court, ordered and decreed that the decree of the court below be reversed and set aside, and the plaintiff’s bill restored ; that upon the plaintiff giving bond and sufficient surety, to be approved by the Court of Common Pleas, in the sum of $8000, an injunction shall be issued out of that court to the defendants, restraining and enjoining them from continuing to construct and complete their railroad through and upon the premises of the ’plaintiff described in his bill, until they shall have given adequate security, to the satisfaction of the said court, in a sum of not less than $8000, that they will pay to the plaintiff all such damages as shall be finally awarded or adjudged to him, or else that they shall and will elevate that part of their railroad passing over the premises of the plaintiff to such a height as shall do no injury to the water-power of the plaintiff on his said premises. And it is ordered that the defendants pay the costs, and that the record be remitted to the Court of Common Pleas to cause this decree to be carried into full execution.