The opinion of the court was delivered, May 11th 1869, by
Read, J.On the 13th March 1823, the General Assembly of Pennsylvania passed an act, authorizing Maurice Wurtz, his heirs and assigns, to improve the navigation of the river Lackawaxen, by making a good and safe descending navigation, at least once in every six days, except when the same may be obstructed by ice or floods, from or near Wagner’s Gap in the county of Luzerne, or from or near Rex’s Gap in the county of Wayne, to the mouth •of the said river Lackawaxen, or a complete slackwater navigation from the same points to the river Delaware. The powers given by the 1st section are extended to both species of improvement.
On the 23d April in the same year, the legislature of the state of New York incorporated “ The President, Managers and Company of the Delaware and Hudson Canal Comyany,” with power to make, construct and for ever maintain a canal or slackwater navigation, of suitable width, depth and dimensions, to be determined by the said corporation, from such point on the river Delaware, within the jurisdiction of the state, through any one or more of the counties of Orange, Sullivan and Ulster, to such points on the river Hudson, as the said corporation shall judge best.
The 21st section authorized the corporation, to contract with Maurice Wurtz, for the purchase of all his rights and privileges under the first mentioned act of the 13th March, and for the purchase of lands containing stone coal, and to apply any part of their capital to the payment of the same, and also, to the improvement of the river Lackawaxen, in the same manner as the said Maurice Wurtz is authorized to do, and to engage in transporting to market the coal they may have purchased. By a supplement of the 7th *270April 1824, the company was authorized to increase its capital to $1,500,000, and another supplement conferred banking powers.
By an Act of the legislature of Pennsylvania of the 1st April 1825, the Delaware and Hudson Company were practically substituted for Maurice Wurtz, in the improvement of the river Lackawaxen, and by an Act of the legislature of New York of the 20th April 1825, this substitution was ratified. By an Act of the legislature of Pennsylvania of the 9th February 1826, and another of the 5th April in the same year, the company were authorized to “ construct a canal navigation fed by the waters of the said river or some of its branches,” and railways. By subsequent acts loans of the credit of the state of New York to the company were made.
The canal as originally constructed in the state of New York was completed in or before 1835, but was soon found inadequate for its business. The company then in 1849 commenced enlarging, widening and deepening the canals and raising its embankments. The power to do this under their charter was sustained by two decisions of their Supreme Court, the first in July 1853, in Bruce v. The Company, 19 Barbour 371, and the second in 1855, in Selden v. Same, 24 Barbour 362, and finally by the Court of Appeal, in January 1864, in 2 Tiffany (29 N. Y. 7), 634.
By the ease of Calkins v. Baldwin, 4 Wendell 667, approved by Judge Selden, 2 Tiffany 641, the remedy of a person claiming indemnity for iniury by the enlargement, is confined to that pointed out in the charter.
In Pennsylvania the canal was opened for navigation in 1828, and the dam which is the subject of the present controversy was then erected, and has been maintained ever since for supplying the canal with water. In 1847 the company commenced the enlargement of their canal which was completed in 1850. It was enlarged in width and depth, necessarily requiring an increase in the supply of water, to obtain which the company rebuilt, repaired and raised the height of their dams across the Lackawaxen. The dam in question with its brackets and slash-boards was rebuilt and raised in 1850, so as to afford the necessary increased demand of water.
The Act of 1833 carefully provided for the uninterrupted rafting of lumber, and a rafting-channel is provided in all their dams, and in the dam in the present case it is 34 feet wide and about 3 feet lower than the balance of the dam. After the freshets have subsided and rafting over, the canal company then put in their brackets and slash-boards which complete the dam in the ordinary state of the waters.
The canal company to supply their canal with water have a number of large reservoirs. As soon as the freshets subside water *271is drawn from them into the river Lackawaxen, and by dams retained and by feeders carried from the river into the canal.
Each dam with its brackets and slash-boards, when used to retain water, has necessarily to be kept and maintained at a fixed uniform height, so as to afford a steady uniform supply of water to the' canal level it supplies, and the other levels connected with and supplied therefrom.
The canal thus enlarged from Honesdale to Rondout, is a great public work of incalculable advantage to the inhabitants of both states under whose authority it has been constructed. The power of enlargement in New York is settled by judicial construction and decision; in Pennsylvania a liberal interpretation of our own acts if necessary might lead to the same result. Whatever has been done by the canal company, has been done clearly under color of their charter if not distinctly authorized by that instrument, and according to the well-settled doctrine in this state, the exercise of this power, privilege and franchise can only be questioned by the Commonwealth, acting by its legal representative in the mode prescribed. It cannot be questioned by an individual, and certainly not by the plaintiff in this case.
“ But an information for the purpose of dissolving the corporation or of seizing its franchises, cannot be prosecuted but by the authority of the Commonwealth to be exercised by the legislature, or by the attorney or solicitor general acting under its direction or ex officio in its behalf. For the Commonwealth may waive any breaches of any condition expressed or implied on which the corporation was created, and we cannot give judgment for the seizure by the Commonwealth of any franchises of any corporation, unless the Commonwealth be a party in interest to the suit and thus assenting to the judgment: ” per Parsons, C. J.; Angell 6 Ames on Corporations, 8th ed. 730.
But the Act of 30th April 1852, Pamph. L. 535, contains a distinct legislative recognition of the works as enlarged at that period, and the remedy provided by the Act of 1823 and its supplements, is expressly applicable to injuries arising from these raised dams whether new or repaired constructions: Union Canal Co. v. Keim, 7 Harris 134; Heilman v. Union Canal Co., 14 Wright 268.
But further, by a supplement to the Act of 1823, passed 20th September 1866 (Pamph. L. 1867, p. 1524), an end is put to all doubt whether the legislature have approved and sanctioned the enlargement of these public works. It enacts that the damages which the company may be liable for from the construction of their works as they are, or hereafter may be altered or extended, shall be secured and assessed in the manner provided by the General Railroad Act and its supplements.
The dam is composed of the permanent portion of the rafting channel with the brackets and slash-boards, and for any injury *272done it by backing the waters upon the land or saw-mill, or the mill-race, or wheel, or works of the plaintiff, his remedy is under the Act'of 1823, or now under the Act of 1866.
The action was misconceived, and we see no reason for reversing the judgment.
Judgment affirmed.