The opinion of the court was delivered, January 7th 1868, by
Thompson, C. J.It cannot be doubted that if the defendant, in this bill, was not fully invested with authority to do the acts, complained of by the plaintiffs, he has created an intolerable nuisance as regards their property, of which they have good reason to complain, and for which they ought to have redress in'some way. Impliedly conceding this, the defendant attempts to justify, under the authority of the Commonwealth, not by express grant, but by a delegation of authority from a company incorporated to build a' railroad for public and general use, under the provisions of the Act of 19th February 1849. This company was incorporated by an Act of Assembly, passed the 25th of March 1864, under and by the name and style 'of “ The New Castle and Franklin Railroad Company,” authorized to build a road from New Castle, in’the county of Lawrence, to the town of Franklin, in the county of Yenango, a distance of about 48 miles. The authorized capital stock was to be $150,000, with the privilege of increasing it to the extent of $600,000. Shortly after the passage of the act, the company organized, and procured a preliminary survey of the line, but made no definite location then nor since. The capital stock was but partially subscribed for, and between three and four thousand dollars only, paid into the treasury. No work whatever has ever been done by the company towards building the road. All that has been done was by the defendant, if it may be regarded as work done on the road at all.
Whatever location the company had in the town of New Castle had been made eighteen months or so prior to the 3d of April 1866, the time at which the defendant’s alleged right assumed a definite shape, and was not in and along the alley and by the premises of the complainant, but, as we understand, entirely elsewhere. Prior to that date the defendant was owner of a tract of mineral, or coal lands near New Castle, and was desirous of - obtaining railroad facilities for bringing his coal into town, and in his answer he alleges that he was about to construct a private road beginning near his land, when he learned that his contemplated line would lie foul of the company’s. What authority he had under which to construct a road we are not informed, or that he had any. But he further states that, in January 1866 he made an agreement with the New Castle and Franklin Railroad Company, which was reduced to writing on the 3d of April 1866, by which he undertook to build for the company two miles or *420thereabouts of road, “ commencing in New Castle, thence up the Neshannock creek, opposite Pyle’s run, on the line of their road,” and to grade the same suitable for the New Castle and Franklin Railroad, as regards alignment and grades, except the iron and road bed; the work to be according to the plans and specifications of the chief engineer. Embankments to be eight feet in width, and cuttings ten; cross-ties to be six by eight inches ; to put on such rails, chairs and spikes as might suit his own use and purposes, and to run his own locomotives and ears on the track thus to be made for his own exclusive use and benefit, until such time as the company might need the possession of the same, which it could take by paying for the cost of construction, right of way, &c., &c., excepting the ir-on, one-half cash, and one-half in the stock of the company. The rate of speed of running the road when built to be regulated by the company, which, I presume, it was not thought worth while doing, as we see no account of it in the minutes of the board.
On the day this contract was entered into, the location previously made, was changed to the place complained of; a new location was made by the engineer of the company, although he testifies that he was not in the employ of the company after the 3d of April, the date of the contract; and he did it at the request of the defendant, who, he thinks, is resposible to him for the engineering. He is under the impression that some of the directors, or perhaps the president, spoke to him about making and staking out the location, but cannot tell who or which; that in laying out the ground along the alley, he did not fix any definite width for the road bed, but only so much as should be necessary for the road along the alley; he never made any report of the new location to the company, and at the close of his testimony on the part of the defence, he discloses the following: “ I agreed to do it (the engineering) in my individual capacity, and not as engineer of the Franklin Company.” Speaking of the road as constructed, he says, “ the rails are very light, about twenty-two pounds to the yard.” We learn, however, that they have been recently changed to a weight of about thirty-three pounds. The gauge is three and a half feet wide. “ The road,” he says, “ is used by James Rhodes, for supplying his mill with coal. Hé has a little engine and a lot of coal-cars, and thus brings coal down from the coal bank. This railroad is not used or operated for any other purpose except for transporting coal by Rhodes from his bank” to his works in town.
Under these proceedings, in regard to location and the contract in question, an application was made in the name of the New Castle and Franklin Railroad Company for the appointment of viewers, under the Act of 1849, to assess the damages which were likely to ensue after comparing the advantages to the owners of property by the construction of the New Castle and Franklin *421Railroad, on a distance of about 680 feet of the 48 miles of road to be made. Bonds were prepared to secure damages to the several owners on this territory, and approved by the court, but no viewers were appointed, that we can discover. Whereupon the defendant, upon a given day mentioned, 7th of May 1864, graded, built and constructed the road along the alley in question, and how much further we are not informed, putting rails of the size just mentioned on a track of three and a half feet in width, and grading the road-bed of the width of about five feet. The engineer, in his testimony, declares that he does not know of any such gauge as three and a half feet for general railroad purposes, as contemplated by the Act of 1849, and he might have well added, “ or any such structure.”
The railroad company have never attempted the construction of any portion 'of their road other than the piece made by Rhodes, if that may he regarded at all. The president testifies “ that they have not yet been in a condition to incur any liabilities in prosecuting the work, because they do not intend to put the work under contract until, in the opinion of the board, we have sufficient to insure its completion.”
This illustrates, in rather a remarkable manner, the object in view in obtaining the possession of the ground by the defendant. If a sufficiency of means to build the entire road should never be obtained, the defendant is to have and use as a private railroad, the ground in question, for the remaining portion of the time -within which the company are to build their road, to wit, ten years, and as much longer as the legislature may extend the time, in consideration of the construction of the portion in question, I presume! The defendant, assuming to be clothed upon with the franchises of the corporation, claims to be justified in taking private property, with all the attendant disadvantages to the owners, for his own private purposes and uses exclusively.
We have not time, or is it necessary, to discuss more at length the facts presented in this case. They are all of one complexion. They exhibit in detail and in entirety, a ease in which it seems impossible to arrive at any other conclusion, than that the proceedings and the construction of this little piece of road in the manner described, was not intended as a part construction of the important undertaking with which the corporation were intrusted by the state — the building of a road to be used by the public from New Castle to the town of Franklin, which the chief engineer, in his first and only report, informed the public was much needed, and destined to become the medium of transit for millions of barrels of oil, millions of tons of coal, and thousands of passengers — but merely colorable, with a view to put the defendant in possession of a right of way on which to build his own private railway, solely for the use of his mills and machinery, and in which the public could have no advantage whatever. There *422is no plan on which such a result can be achieved, without the violation of the principles of the c&nstitution and the rights of the citizen. Germain to this view in'principle, is Jessup v. Loucks, decided at the last term of this court for the Middle District, 5 P. E. Smith 350.
Perhaps, however, inasmuch as the corporation is not a party to the bill, the view we might take of the contract in this case, if it were, is not proper to be taken now. But this will not and ought not, to prevent us from protecting the plaintiff’s right to equitable interference on other grounds. The corporation could not transfer its franchise, granted to benefit the public, to enable a private party to construct and maintain a private road for his own private use and benefit: Jessup v. Loucks, supra. If the law be so, the defendant in running the road in question, interrupting the plaintiff’s right of free passage in the alley, and creating a nuisance to the plaintiff’s dwellings, has no protection under the agreement with the company, and his acts are contrary to law and prejudicial to the plaintiff’s interests, and ought to be restrained.
A single trespass, or several, not coupled with circumstances indicating that they were to be repeated continuously, are generally redressed by the common-law action of damages. But when they are constantly recurring, and threaten to continue, it is well settled that they may be redressed in equity by injunction : Story’s Eq. §§ 925, 926, 927; 12 Harris 159. Numerous authorities might be cited for this, but these will suffice for the present. It is an elementary principle now, and does not need support from decisions, that neither railroad corporations, nor any other, can lawfully do anything outside of the powers expressly given in their charters. The cases of the Commonwealth v. The Pittsburg and Connellsville Railroad Co., 12 Harris 159, and The Commonwealth v. The Erie and North East Railroad Co., 3 Casey 339, contain the doctrines and the 'authorities very fully in support of this.
It is equally well settled that charters are to be strictly construed : what is granted may be exercised but nothing is to be taken by implication. The grant of corporate authority is a trust, and to be executed in the same spirit of fairness towards the public, as it would be by the state herself, and hence it may not be sold or assigned without^ express authority. The corporators undertake to stand in the shoes of the commonwealth, and what they have undertaken to do they must do ; they cannot alienate authority and control in favor of private parties, or -to agents responsible or irresponsible. If the New Castle and Eranklin Railroad Company, had power to let the portion of their road in question, to be constructed and used by a private party for private uses exclusively, for an indefinite period, there is nothing to limit the principle to one such contract; there might just as well be fifty, and the whole line be farmed out to private purposes, in *423manifest disregard of the duty owing by the corporators to the state. The discretion which the company was to exercise in performing their undertaking under the charter, would thus pass to parties to whose discretion the state committed no charge. Authority to make such a contract, is not within the provision of the act of incorporation ; and as it is without authority and against the policy of the law, it must be void. The authority to construct a road for the use of the public, cannot be turned into an authority to construct a private road. Sometimes contractors agree for the profits of running a road as far as made, and just as made, for their own benefit, but always for the purposes of its charter and never to exclude the -public. That is not this case. The public are entirely excluded, not only by the kind of road and rolling stock on it, but by the agreement itself, and not only so, the right of eminent'domain was exercised here, in substance and essence, for purposes that were private, and the plaintiff’s property taken for such purpose. This was all wrong and requires to be redressed.
The defendant, therefore, being without right or title in the occupancy of the alley in question for the use of his railway, and the plaintiff’s title in it admitted, it is manifest that the running of coal-cars in and along it with steam locomotives, several times a day, creating dirt, dust and smoke, is prejudicial to the plaintiff’s property and should be prevented. We must, therefore, reverse the decree of the court below, dismissing the complainant’s bill, and reinstate the same, with an order for a decree in accordance with these views and principles.
The answer containing supposed matter in abatement of the bill, viz., the pendency of a suit at law, waiving objections to the mode of presentation, is not an answer to the bill or relief prayed. That is a suit for a different cause of action, to recover damages for a past trespass and against different parties.
The bill here is to prevent future trespasses, leaving compensation for damage done, to an action at law for its recovery.
The decree of the court below dismissing the plaintiff’s bill is reversed, and the bill is ordered to be reinstated, and the court below is directed to enter a decree in favor of the plaintiffs, enjoining the defendant, his servants and agents from running ears on the railroad of the defendant, and along the alley in the bill mentioned, or by and along the premises of the plaintiffs ; and to remove the rails, cross-ties and embankments, in said alley therefrom, leaving the same in as good . repair, as an ordinary passage-way, as it was in when, and immediately before, the said road of the defendant was constructed, and that the respondents pay all costs of suit and of this appeal.