Chesapeake & Ohio Canal Co. v. Baltimore & Ohio Rail Road

Dorsey, J.,

also dissented, and delivered the following opinion:

In forming an opinion on the various questions presented for determination, by the argument in this case, I shall endeavor to divest my mind of every impression, which may have been made by the eloquent and forcible appeal, preferred to the patriotism and sympathies of this court, by the appellant, to induce them to urge on the argument of this case against the consent of the appellees, out of its regular order. And this, I am the more easily enabled to do, by finding, on a careful examination of the record, that the harsh and uncharitable remarks made on the conduct of the President and Directors of the Baltimore and Ohio Rail Road Company, according to my view of the subject, are wholly unwarranted by any unprejudiced consideration of the facts in the case; and that the appeal made to stimulate the patriotic energies of the court, to an unwonted expedition, for the avowed purpose of removing the alleged “only obstacle” to the speedy completion of the greatest of national objects, the consolidation and perpetuation of the vital principles of the Union, and *226the establishment of a connected navigation between the eastern and western waters, cannot be followed by the contemplated result; as the counsel for the Canal Company, in his concluding argument, has distinctly announced to us, that this company has not been chartered by Pennsylvania; not having agreed to accept the act of assembly of that State, by reason of the numerous conditions on which it was granted. That under present circumstances, more favorable terms could be obtained by them, is an event, in my estimation, not to be anticipated. So that this magnificent and stupendous enterprise is disrobed of its national character, and consequently, high prerogatives, and sinks into a mere “local” canal, whose extension is limited by the confines of Maryland. I shall also view this case, unprejudiced by the assertion, that the canal being a public highway, its charter should be most liberally and favorably construed; whereas, that of the rail road establishing “a close,” “odious,” and “enormous monopoly,” should be visited with a most rigorous interpretation. Because, I regard a rail road, practically and beneficially, as great a convenience to the community, as any public highway; and those features of monopoly, so much complained of, are the inseparable attributes of that mode of internal improvement, deprived of which, it would lose all its value, and could no longer be esteemed as of public utility.

The first inquiry, which I shall examine, is that, most elaborately and ably discussed on both sides : at what time did the rights of the Chesapeake and Ohio Canal Company accrued Are they to relate to the date of their charter, or to the period at which, by the terms of that charter, they became a body corporate ? As to the Rail Road Company, in this respect, there has been no controversy. Whether the accrual of their franchises be carried back to the time of the adoption of their charter, or to the time of their organization under it, is immaterial, as far as this first inquiry is concerned. The time, at which they assumed their corporate charter, were duly organized, and made the location *227of their rail road, being conceded. With respect to the Chesapeake and Ohio Canal Company, a preliminary question is presented: at what time, agreeably to the provisions of their charter, was the amount of stock subscribed for, requisite to give them a corporate existence ? By the 3d section of that law, it is enacted, “that whenever one-fourth, or a greater part of the said stock, shall have been subscribed, in the manner aforesaid, then the subscribers, their heirs and assigns, shall be, and are hereby declared to be, incorporated into a company, by the name of the “Chesapeake and Ohio Canal Company.” The object of the legislature, in imposing this condition precedent, to my mind is most manifest; they designed that the powers and privileges created by their charter, never should vest, until the number of subscribers was such, as to afford a guaranty, or strong probability of the completion of the work, of which the company were to assume the execution. Nothing but a subscription by bona fide, competent subscribers, could gratify this postulate of the canal charter. If for a proposition, so undeniable, an authority were required, one, of the most conclusive character, may be found, in the case of the Salem Mill Dam Corporation vs. Joseph Ropes, 9 Pickering, 189.

One-fourth part of the capital stock of the Chesapeake and Ohio Canal Company, is $1,500,000. In November, 1827, the whole amount of subscription, for the canal stock, by competent subscribers, was $416,900. In January, 1828, it was $562,700. In these estimates are excluded the subscriptions of $100,000 by the corporation of the city of Washington; of $250,000 by the corporation of Georgetown; and the like sum by the corporation of Alexandria; because, by reference to the charters of those cities, it will be seen, that they were incompetent to make such subscriptions: their powers being all of a strictly limited, municipal character; and by no possibility of construction, could they be made to convey an authority to bind those cities for the amounts which had been subscribed. They *228could levy money on the property within their respective jurisdictions, only to a very small amount; and such levies, they were enjoined, to apply to defraying the expenditures, incident to the execution of the specially enumerated powers with which they were invested by their charters. The subscriptions of stock, by the corporations of Georgetown, Washington and Alexandria, as before stated, formed therefore, no part of that subscription, which was required by the charter of the Chesapeake and Ohio Canal Company, to give that. company a legal entity. And, that such was the admitted fact, anterior to-the present controversy, is demonstrated by the act of the Congress of the United States, passed May 24th, 1828, entitled “An act to enlarge the powers of the several corporations of the District of Coiumbia, and for other purposesby which it is enacted “that the corporation of Washington, the corporation of Georgetown, and ' the corporation of Alexandria, within the District of Columbia, shall, severally, have full power and authority to subscribe and pay for shares of the stock of the Chesapeake and' Ohio Canal Company; and all such subscriptions as shall have been already made, by either of the said corporations, shall, and the same are hereby declared to be valid, and binding on the said corporations respectively.’7 If these corporations, anterior to May, 1828, possessed the power of subscribing for canal stock, why the necessity for an act of Congress expressly creating this power, and declaring valid and binding on the said corporations respectively, subscriptions, by them, antecedently made ?

But it is contended, that conceding the invalidity of these subscriptions, prior to the passage of the act of Congress, to constitute the amount of stock, requisite to the existence of the contemplated corporation ; yet, that by the act of Congress, they were rendered valid, to all intents and purposes, in the same manner, as if this act of Congress had simultaneously passed. There is nothing in the act of Congress itself, in the principles of justice or the ánalogies *229of the law, to sustain this position. There are no words, in the act of Congress to favor such a construction. The terms used, are as precise, unequivocal, and comprehensive, for the purpose designed, as language could make them—the subscriptions were to be valid and binding, on the said corporations, respectively; and on them only. Not as is now insisted, tobe “valid and binding” to the destruction of rights, legally and intermediately invested in third persons. Retrospective laws, upon every principle of sound interpretation, are to be construed strictly, and not extended beyond their obvious, natural import. Upon what grounds, then, can it be seriously urged, that the meaning of Congress, in this case, is, not only to be carried to the fullest extent, which the import of the terms used will bear ; but that you are to add to the enacting clause, without one word or circumstance indicating such a legislative design, “that those subscriptions should be as valid and binding upon all persons whatsoever, as if those corporations, at the time of subscribing, possessed the power then given them by this act of Congress ?” To have passed such a law, to operate in a contest like the present, was not within the powers of Congress, had they designed to exercise such a right. Even though it should be conceded that they could have made the subscriptions, from their date, valid and binding on the State of Maryland, which I deny; yet they could not have made them so, on the Baltimore and Ohio Radi Road Company, whose intermediate rights were lawfully acquired from the State of Maryland. Such an attempt would, not only have been inconsistent with the plainest dictates of justice, but subversive of the fundamental principles of civil government; and in spirit, a violation of that principle of the constitution, which forbids the passage of laws impairing the obligation of contracts. To impute to Congress, such an outrage, from an act of legislation, like that now before us, would be, to say the least of it, so uncourteous an extension of judicial *230power, that no court of judicature entertaining a just respect for themselves, would ever sanction it.

That a statute, affecting a corporation in esse, is only operative thereon from the time of its acceptance, is abundantly shown, by the authorities cited on the part of the appellees; if authorities for such a proposition could be deemed necessary. It is an assumption which needs no authorities, that the organization of a company under such a law, as that constituting the Chesapeake and Ohio Canal Company, is per se its acceptance. If then the rights of this corporation accrue at the instant they accept their charter, or in other words become a corporate body, it follows that the accrual of their rights did not occur prior to the 24th of May, 1828, and that, as far as mere priority is concerned, they must yield precedence to the Rail Road Company. But to evade the force of this sound, natural, and common sense inference; it is contended that as soon as the Chesapeake and Ohio Canal Company springs into being, they are invested with all the rights and powers designed to be conferred on them, not from the date of their actual existence and investiture, but from the date of their charter. And this doctrine has been insisted on, upon two grounds; on one or the other of which it is said to be clearly sustainable. First, it is contended that from the nature of the franchises, about to be erected, they must be regarded from the date of the charter, as “ rights sui generis, with a latent and indefeasible capacity of future attachment,” &c. To sustain the legal recognition of this class of “rights,” unintelligible, to minds not perverted by the most subtle refinements of legal technicalities, it was to have been expected, that at least some adjudication would have been adduced. In this expectation however, I have been disappointed. And being, in accordance with the spirit of the times, opposed to innovations on the common law not resting on reason and justice, but the offspring of abstruse refinement and incomprehensible subtilties, I cannot prevail on myself, without stronger reasons *231than exist for it in the present ease, to admit the existence of this novel species of rights.

The ground which was next relied on in support'of the principle of relation, was, that from the date of the charter of the Chesapeake and Ohio Canal Company, all the rights with which it was intended to invest them, passed out of the States of Maryland and Virginia, and remained in abeyance, until the company was formed in whom they might legally vest: and that among these rights, passed that of eminent domain, over the whole section of country, watered by the Potomac and its tributaries, above tide water: comprehending perhaps a territory of two or three hundred thousand square miles. That the grant by Maryland, therefore, of any portion of this right to the Rail Road Company, was inoperative and void—she possessing no such power, could not communicate it to others. To support this doctrine, so astounding in its enunciation, nothing like an express adjudication has been produced ; but it has been argued so much at length, and with so much earnestness on both sides, that it might from that circumstance, be well imagined to be a question of great difficulty and doubt, on the decision of which the whole merits of the controversy depended. It was attempted to be sustained upon principles of reason and justice, of policy, of intention in the legislature, of dedication to pious and public uses, and as being clearly within the principle of abeyance. This state of abeyance, it did appear to me when the idea was started, in the argument, and subsequent reflection has confirmed my first impressions, was so wholly irrelevant and inapplicable to the circumstances of this case, that I regarded the invocation of its aid, as the last effort of extreme ingenuity, contending with difficulties insurmountable, by which it was threatened to be overwhelmed. This “absurd and unintelligible fiction,” as it is denominated by one of the most profoundly learned and able jurists, that has ever written upon the laws of England, is always odious and never tolerated, but from necessity. From necessity, because, without its ad*232mission the grant must fail to take effect; upon no other legal principles could it be sustained : without it, the intention of the grantor would be wholly defeated. 4 Kent. Com. 252. Is this the condition of the grant made' to the Chesapeake and Ohio Canal Company. ’ Can no company be organized, under the law, unless you adopt this wild notion of abeyance ? Might not every letter, word and object of the legislature have been gratified, and yet the right of eminent domain have remained in the State of Maryland until the Chesapeake and Ohio . Canal Company were in being, and competent to exert it. If so, and it is impossible to deny it, the essential ingredient, that which is inseparable from the doctrine of abeyance, the necessity of resorting to it, as the only means of effectuating the grant, is wanting; and the principle is therefore wholly inapplicable to the ease. This necessity does not depend on subsequent contingencies; it must exist at the instant the grant is made, or it can never exist at all. If the States of Maryland and Virginia had, in express terms of present grant, given to the Chesapeake and Ohio Canal Company the power of eminent domain, as now claimed; thus evincing a determination immediately to divest themselves of that right, there might have been some apology, for resorting to this far-fetched absurdity called abeyance. Because, the States having in express terms, parted with this right, and the Chesapeake and Ohio Canal Company, not being competent to take it, there is some pretext for saying, according to the fictions of abeyance, that it passed into the clouds, there to remain until the Chesapeake and Ohio Canal Company should spring into life, when it would descend upon them. But.have Maryland and Virginia attempted the commission of such an act of rashness' and folly, conceding to them the right to do so? which, however, I deny. Nothing bearing to it the most remote resemblance is to be found in their law. The 15th section, is the only one to be found on .the subject. That simply declares that, “ whereas it is necessary for the making of the *233said canal, locks, dams, ponds, feeders and other works, that provision should be made for condemning a quantity of land for the purpose ; “be it enacted, that it shall andhnay be lawful for the said president and directors, or a majority of them, to agree with the owners of any land, through which the said canal is intended to pass, for the purchase or use and occupation thereof; and in case of disagrement, or in case the owner thereof shall be a feme-covert, under age, non compos, or out of the State or county, on application to a justice of the peace of the county in which such land shall lie, &c. he shall issue his warrant to the sheriff, to summon a jury to value such lands, and upon payment of the valuation, the Canal Company are to be invested with the title thereto.” It is the intention of the legislature, to be collected from what they have said, that must control the construction of their act; so far as they have disclosed an intention to bind themselves, or part with their privileges, and no farther, can we hold them bound. There is nothing in the language of the act of assembly; or the subject matter to which it applies; or the nature of the corporation or franchises, which it was designed to create, tending to give a momentary countenance to the intent imputed to the general assembly, or to the interpolation of this extraordinary principle of abeyance. On the contrary, every clause and sentence of this act of assembly is in accordance with the common sense, sound legal axiom of the law, that those rights which pass not to the grantees, remain in the grantors. What motive could have induced the legislature, in this case, to have acted in reference to a different rule? If their object were, as no doubt it was, to expedite the formation of the Canal Company, would it have been, with most certainty effected, by the measures imputed to them? Would any individual have more willingly subscribed for stock, because the rights, which he thereby acquired, passed to him, not by immediate transition from the State, but in a way, which none but minds strongly imbued with legal subtiitics, not to say absurdities, could *234comprehend? Would it not have had a tendency to delay the filling of the subscription list, when those who were peculiarly interested in the subject, saw there was no motive for haste, that thejr might await their own convenience; as all power of revoking or impairing the grant, or creating a rival enterprise, had passed from the hands of the State. There was then no motive for inconvenient dispatch ; they might with safety wait, and speculate on events. Had the legislature designed to seal up their powers, in this incompre hensible mysterious abeyance, would they not have limited some period, at the expiration of which, they should be restored to them, in case the contemplated corporation should never be in a capacity to exert them ? It connot be said, that their omission to do so was the result of an entire confidence, that such a contingency could not occur. The reverse is the truth, as is demonstrated by their legislating for such an emergency, and declaring, that if the requisite amount of stock were not subscribed, the subscribers should he released from their engagements: thus sedulously providing for the protection of the interests of all parties concerned, but of themselves and their constituents. Is it fair to impute to our public functionaries such unpardonable negligence, or intentional violation of their duties? Should we not in candor presume, that the legislature never intended to divest themselves, to our injury, of those powers which were confided to them for our benefit, until that corporation came into esse, by which they were to be beneficially exercised—that until then, their sovereign power of legislation remained unimpaired, and needed no statutory reservation to preserve it? If such were the conceptions and designs of the legislature, and the language they have used, as it is, be in accordance with them, is there any stern, unbending rule of law, by which, in a case like the present, the manifest intention is to be frustrated, and sovereignty disrobed of its characteristic and noblest attribute, by the seal of abeyance being stamped on its powers? If in the constitutional code of laws of any civilized nation, the ap*235plication of such a principle be tolerated, it should not find its way into the free and enlightened institutions of this country, by judicial legislation. From its introduction through any other source we have nothing to fear.

The right of eminent domain is only vested in the State, and can only be exercised by it, for the promotion of the public welfare. No transfer, or disposition can be made of it, for any other purpose. It is a power which is of the essence of sovereign government: and must always remain in a state, capable of being exerted for the public good. Such is the inherent, inviolable condition of its tenure. The State can pass no law, either utterly annulling the right, or suspending its exertion for an indefinite period, which could in anywise control subsequent legislation; until the right vests elsewhere, to be used for the public benefit, it always remains in the State. And even where the power to exercise it, is confided to others, they are not to be regarded in the character of its owners or possessors, but the instruments or agents, through whom its execution is effected by the State. Upon these grounds, the right depends, according to the fundamental principles of our government; and the interests of the community are deeply concerned in their inviolate preservation. In conformity thereto, should all legislative enactments on the subject, be presumed to have been made, unless such presumption be conclusively rebutted, by the terms of the laws themselves. The provisions of the charter of the Canal Company are in strict unison with such a construction; and are only made to violate it by an unnatural, wild, and strained interpretation ; or rather by ingrafting on the act, an entirely new provision, unnecessary, impolitic, and improper in its operation, and which never entered into the imagination of the general assembly. And for what purpose are we urged to do this ? That we may give to the Canal Company powers and priorities with which the law has not invested them; and convict a subsequent legislature of a breach of faith, and of duty, and of a violation of the constitution of the United *236States, which they had sworn to support. The rail road charter does impair, or designs to impair, the rights secured to the Canal Company, if any of the positions of the appellants be sustained, except that which relates to the true construction of the rail road charter itself. The rule is and should be, omnia rite acta fuisse prcesumuntur.” It applies, more strongly,, to the acts of co-ordinate branches of the government, than to those of courts of judicature. The power of courts of justice, of declaring an act of the legislature unconstitutional, in this State is drawn from necessity: and whilst I admit its existence, I am firm in the conviction, that it should never be exercised, but in a clear case, where the usurpation of authority stands free from doubt. If this high and delicate power be lightly or wantonly exerted, or in any other than cases where the mind harbors no reasonable doubts, as to the infringement of constitutional principles, it will lead to consequences, more ruinous to the public interests, than would attend its non-existence.

But where the necessity of introducing into this case, the magical term “abeyance ?” Its introduction, in construing the act of the legislature relative to the Canal Company, serves but to perplex and confound what is otherwise simple and unambiguous. The cases, referred to in support of it, are those of present grant, not where a mere mode of creating’a franchise or right, is provided for by law. They are cases where the grant must operate in presentí or never. Here there is no absolute, or immediate grant of a franchise, which must take effect instanter or never: nor is it a grant on a condition precedent or subsequent, by which irrevocable rights instantly pass from the grantors. But it is, as it were the mere offer of a bargain, a naked authority, which, until accepted in the mode prescribed, is revocable at the discretion of (he party from whom it emanates. This, surely, would be its condition, if this charter were the act of a private individual. Can a reason be assigned, why a different construction should be placed upon it, when regarded as the act of a legislative body ? What is a statute, .or ac-*237of assembly, but the mere expression of the will of the legislature ?

The adoption of the notion of abeyance makes the legislature to do, what is inconsistent with their duty, and irreconcileable with the attributes of sovereign legislative power: and imposes on them this absurdity, without motive or object; whereas their duty to their constituents, the interests of the community, and all sound legislative policy should have prompted them to a course of conduct, the reverse of that which is ascribed to them. They would be binding themselves for a period indefinite, when no equivalent obligation was imposed on the party with whom they designed ultimately to form a contract. No time was limited for the organization of the Chesapeake and Ohio Canal Company; none prescribed, when the important prerogative of legislating for the public good, according to the exigencies of the times, and the improved lights of science, might descend from the clouds, and light again on the sovereign legislature of the State. No human foresight could with certainty predict such a reinvestment of power. It could not be effected by limitations or length of time, until there be a party in esse, whose right might be impaired by such a positive or presumptive bar. If, therefore, a thousand years were to elapse, before any company were formed under the canal charter, the State, though enjoying none of the contemplated advantages, which formed the consideration for the cession of their rights, would still be hung up in this state of abeyance. It could not in any part of the territory, watered by the Potomac and its tributaries, open a public highway ; authorise the construction of a turnpike road; condemn, as is usual, the site of a town, or sanction any other internal improvement; not even grant to the United States or to itself, the land necessary to erect a fort or arsenal, no matter how urgent a necessity therefor, may have been produced by a state of war. Can a court of justice, unless impelled by a force of language which leaves no alternative, which admits of no other ra*238tional construction, be induced for a moment to countenance such a theory. According to my view of the subject, without violating the plainest principles of reason, justice, policy, the express words of the law, and the manifest intent of its framers, it is impossible to do so. What motive could have prompted the legislature to such a suicidal act ? May not every rational design, which can be imputed to them, be as effectually accomplished by their retaining the power, till it vested elsewhere in a capacity to be exerted.

And this state of abeyance, if once endured, must be interminable, unless, per chance, a Chesapeake and Ohio Canal Company should spring into existence: and consequently presents this strange incongruity; if no body corporate comes into being, in whom, by the terms of the grant, they can vest, the rights of the State are irrecoverably gone; by no possibility can they be re-acquired; but, if those rights vest in the grantees, there is some hope for the State. It may be restored to its lost inheritance, which it sold for less than a pot of porridge, by purchase, by forfeiture, or by the Chesapeake and Ohio Canal Company ceasing to have further occasion for its use.- Such an absurdity has no analogy in the law to sustain it: no reason, resting on expediency or necessity. It was suggested, that such a construction was necessary, in order to protect the Canal Company from the effects of conflicting, unjust, and inconsistent legislation. Has the constitution made any provision against such acts? If not, can a court of justice do so? Can they mould laws and constitutions as suits their pleasure ? And for what purpose are they now asked to do so? To prevent the legislature from exercising their inherent rights, lest according to the court’s notions on the subject, they may exert them unwisely, unnecessarily, or inconsistently. Of their conduct, in this respect, they are themselves the sole, the exclusive judges. The constitution has imposed on them no such interdict: it is neither our province, nor within our powers to prescribe it. To interpret their acts, or adjudicate on such a presumption, would be an indignity *239to the legislature, that this court could not permit themselves to offer. Were we to do so, it would be but a consistent extension of the same principle, to determine, that the general assembly having once legislated, their power of future legislation on the same subject, was in abeyance, lest they should act unwisely, unjustly, or inconsistently.

As respects the right of eminent domain, the same power has always been given to the turnpike road companies, that is conferred on the Chesapeake and Ohio Canal Company. Was it ever before suggested, that until the location of those roads were made, the right of eminent domain over the whole section of country in which their location was authorised, had passed out the State; and that no public highway could be laid out through it, until those turnpike roads were definitively located. On the contrary, have not the legistature, under such circumstances, been in the constant habit of opening public roads, as if no restriction had been laid on their powers: thus giving a legislative interpretation to their acts, and announcing their intention to be, the reverse of that which it is now insisted to have been.

According to this doctrine of abeyance too, if, immediately after the passage of the canal charter, and the assent to it by the Potomac Company, and before one share of stock had been subscribed, Virginia, Maryland, Congress, and the Potomac Company, had for reasons the most cogent, determined that the charter of the Chesapeake and Ohio Canal Company should be annulled ; and in pursuance of such determination, the Potomac Company had revoked their assent, and Maryland, Virginia, and Congress, had repealed their laws, yet it was competent to have proceeded and organized the Chesapeake and Ohio Canal Company; and when organized, they would have been clothed with the same powers and immunities, as if those repeals and revocation had never taken place: and this without the aid of any constitutional provision. Does this appear to be either reasonable or just? is it such an intention as ought to be imputed to the parties to this charter? Unless restrain*240ed by some constitutional, or fundamental principle of civil government, what one legislature enacts, the same, or its succeeding legislature, may modify or repeal, either in whole or in part. Until the corporate franchise was acquired in the mode pointed out by the canal charter; Congress and the legislatures of Maryland and Virginia, or either of them, as far as their respective interests were concerned, might at discretion have exerted this power. The right appears to me incontrovertible: the only question could have been the expediency of its exercise; and of this the legislature are the uncontrolled, exclusive judges. To restrain the legislative power, in the manner here attempted, is to fetter it with a restriction which no principle of constitutional law, of civil government, of reason, or of public policy, either authorises or requires. It is essential to our well being and prosperity, as a nation, that they who legislate for our benefit, should be left free to act, as their wisdom, prudence, and sense of justice, may dictate. And that in their sphere of action, in providing for the public weal, no restraints should be imposed on their powers, which are not to be found in our constitutional code, or in those fundamental principles which are the basis of all civil society. If, from misrepresentation, or ignorance of facts, or misconception of our rights or interests, they are led into error; they should be permitted to retrace their steps, to correct their mistakes. The existence of such a privilege is of the essence of legislative power: to withhold it would be productive of ruinous consequences. What is there in the charter of the Chesapeake and Ohio Canal Company to make it an exception to this general rule? Considered in its proper-light, it is nothing more than the offer of a bargain-, by three States, which, upon its acceptance, forms the contracting party on one side; the grantors. Until such acceptance, either of those States might revoke or alter its proposals at pleasure.. It is-in no wise-distinguishable from a similar offer made by a private individual in reference to his own-,domain.- -And the same-right of amendment, mod--, *241ification, or revocation of such offer would exist in the one case, as the other. With as much propriety may you apply this doctrine of abeyance, to the common cases of unaccepted contracts between individuals. As if A proposed to 13 to go to Washington, or pay me £10, and you shall have my horse, although B make no engagement to do either; yet A’s right to his horse is put in abeyance, and he cannot be restored to his right of property, by withdrawing his proposition.

The argument is, “that when the corporation comes into life, the franchise which existed before de jure, then vests de facto, and relates back to the date of the charter, having the same operation as if the Canal Company had then been in existence.” if this position can be sustained, there could be no such thing, as seniority in grants of land in Maryland, issued under the same order of the Lord Proprietary, or of the Governor and Council, or of the same act of the General Assembly of Maryland. And if by a subsequent order, a particular manor were granted, and afterwards a part thereof granted under a survey, authorised by the prior orders, the junior grant would have priority over the senior: contrary to the repeated decisions of all the courts in Maryland upon that subject. Indeed it would follow, that after the acts of assembly, or orders of the executive council, have, upon the terms and conditions therein specified, authorised the citizens of the United States to acquire title to all, or any of the vacant lands in the State, that those acts of assembly, or the orders of council, could not subsequently be changed or repealed; the rights of the State having been thereby, put in abeyance. And yet such repeals and modifications have uniformly been made, ana it never entered into the imagination of man, to quesiion their legality, or to carry back a title, beyond the period at which the grantee acquired an equitable title, by locating his land warrant.

Under our act of assembly, entitled “an act to incorporate certain persons in every Christian church or congre*242gation in this State,” every religious denomination may become incorporated, by complying with the prescribed requisitions. By this notion, of relation to the date of the law authorising an incorporation, all of those corporate bodies come into existence at the same instant of time: there is no such thing as seniority amongst them; although, in point of fact, some of those Christian congregations had been duly incorporated, twenty years before others ever existed? or were known as a religious sect, or denomination of Christians. And if 500 years had intervened, it would not vary the principle. Should the State, for the encouragement of religion, direct its treasurer to divide $ 10,000 on the 1st January, 1833, amongst all the religious societies, incorporated under that act; a Christian congregation, conforming to the provisions of the law, fifty years afterwards, might, by this retrospective operation, claim its distribution of that, of which it was never designed to be a participant.

If the Chesapeake and Ohio Canal Company, by this doctrine of abeyance and relation, is, upon its being ushered into life, to be considered as clothed with the rights of the State from the date of its charter; upon the same principle, the proposition is incontrovertible, that they are invested with all the rights and properly of the Potomac Company, from the time of their assent to the canal charter: which assent was given, as it was designed to be, soon after the passage of the act of assembly under which it was made. They could no longer collect tolls, or do any other act authorised by their charter. Was such the design of the legislature ? Could they have intended, to prompt the Potomac Company to such an act of folly, and ruinous injustice to themselves ? That all their dearly bought rights and privileges should be suspended ; the public deprived of the enjoyment of the canals and locks constructed for their benefit, to gratify an absurd, unnecessary, technical fiction, which in truth, has no application to such a sub-, ject. If the'States are to be held as having made this wanton, useless sacrifice of their rights, human ingenuity can*243not suggest a ground, on which, the Potomac Company can be rescued from a similar fate. Abeyance is equally applicable ; if it does not more strongly apply to acts of individuals and corporations, than to those of a sovereign State.

If, then, fifty or a hundred years had elapsed (as it well might and probably would, but for the subscription of if 1,000,000 obtained from the United States, at a moment the most auspicious,) before the Chesapeake and Ohio Canal Company had been warmed into life, and during that interval, the profits received by the Potomac Company, if any they could receive, had been millions; the whole of it would have vested in the Chesapeake and Ohio Canal Company: and no interest would be allowed the Potomac Company on their capital during this period. Would this be justice ? Could it have been the intention of the legislature, or the understanding of the Potomac Company, when their assent was given? Had the Canal Company been immediately organized by the terms of their charter, the stockholders in the Potomac Company, at the par, or nominal value of their stock, were to be adopted as stockholders in the Canal Company. In this situation of the parties, the proposed substitution administered justice to both sides; but can it be conceived, that either the legislature or Potomac Company intended, that if the organization of the Canal Company were delayed for a century, and during this period, the profits of the Potomac Company were four times the amount of its stock, yet it all became the property of the Canal Company. Such glaring injustice finds no support in the express words of the law, upon no principle of construction or implication does it receive the slightest sanction. Of the use and profits of their stock, the Potomac Company remained in the enjoyment, until they were substituted to an equivalent, by the organization of the Canal Company. So, upon the most extended idea of the transfer of the right of eminent domain, which can be insisted on with the the semblance of plausibility, to sup*244port it, the State continued in possession of it, until it vested in a being, in esse, competent to exert it for the purpose for which it exists. As was before remarked, the power of eminent domain is the inseparable attribute of sovereignty; and is held as a high and sacred trust, delegated exclusively, and to be exerted only for the public good. It is a right, in its nature unalienable, except to those, who, exercising it in consummation of the designs for which it was granted, are regarded, pro hac vice, as the agents or instruments of government. It cannot be granted to those who are incompetent to exert it: neither can the sovereign power disrobe itself of this, its noblest prerogative, nor place it in abeyance, or in any condition in which it is incapable of being exercised, where the interests of the public demand its exertion. These are implied conditions inherent in the nature of the power, and indissolubly attendant on its possession.

By the act of the general assembly of Maryland, passed in 1704, the vestry of every parish in the State, are empowered, upon the same principles that the Canal Company are authorised to exercise a similar right, to condemn two acres of land, for the building of a church or chapel of ease. And by an act passed in 1719, for the encouragement of iron manufacture, any person or persons were authorised, in like manner, to procure the condemnation of sites for forge mills, and iron works, each condemnation to embrace 100 acres of land. If the doctrines of the appellants be sustained, it follows, that, by these acts of assembly, the right of eminent domain over all. the lands in the State was put in abeyance, until every suitable site for such a purpose should be improved, which will not be the case, in all probability, for centuries to come. The State, therefore, after the year 1719, had no more power to pass any right of eminent domain to the Chesapeake and Ohio Canal Company, than after the passage of the charter of that company, it could communicate it to the Baltimore and Ohio Rail Road Company. Their argument proves too *245much; it annihilates their own rights, whilst it destroys those of the rail road ; it involves both companies in one common ruin. The same remarks are applicable to the act of assembly passed in 1704, to encourage the building of water mills, by condemning ten acres of land for each site. And, notwithstanding these acts of assembly, that banished to the clouds or the moon, the right of eminent domain, which only returned to earth, as the exigencies under those laws demanded its re-appearance, yet, at every session of the general assembly, from the year 1704, to the present time, that power had been exerted in opening public highways, &c.; and such, the exercise of this power, had produced at various times before the legislature, in court and out of court, controversies of the most important and warmly contested character; yet, wonderful to tell, neither the legislature by whom the laws were enacted, nor the lawyers, nor the judges by whom they were scrutinized and sustained, until the present trial, ever dreamed of the discovery, now made: that all their proceedings were erroneous, being founded on the right of eminent domain, which did not exist in the State, having taken its flight from Maryland in 1704.

The appellants say, it is comparatively unimportant “when and how the company was organised as a body corporáte, and acquired a capacity to be fully invested with their corporate franchises; whether in November, 1827, when the required quota of stock was subscribed; or in May, 1828, when the subscriptions of the district corporations were confirmed by Congress;” their rights take date not from that period, but from the day of the passage of the charter of incorporation ; and are, to all intents and purposes, the same, as if the corporation had been brought into immediate existence, by the charter itself. This is extending the principle of “relation,” in utter disregard of the reasons on which it is founded; and to an extent which is authorised by no previous adjudication. The cases to which it is applicable, as I have always understood the rule ; are where *246clear equitable rights are acquired, which cannot be defeated by him, in whom the legal title remains, but by an act of fraud or injustice; there a junior grant, in conformity to such prior equities, shall exclude or postpone a prior intermediate grant. To illustrate the principle, by the case of common occurrence in Maryland: A locates his warrant on Black Acre; returns his certificate; pays his composition money; but omits to consummate his title, by obtaining his patent. B afterwards executes his warrant on the same land; and, having complied with all the requisitions of the land office, receives his grant. A patent subsequently issues to A on his certificate. In contesting their rights, standing alone upon their patents, B has the prior and better title: but the court, looking to the anterior equities of A, regard his patent as coeval therewith; and to prevent fraud or injustice upon the principle of equitable “relation,” the prior equity and junior grant have precedence of the junior equity and senior grant. But what equities had the appellants, simply on the passage of their charter? What fraud or injustice, would they have suffered by a repeal of the law, or any such modification of it, as the legislature might have seen fit to adopt? None. No rights, either legal or equitable, were conferred on the appellants, but by the requisite acts done in conformity to the act of assembly. Then their equities first arose; and to no more remote period, upon any principle of relation, can they possibly be carried. The appellants seek to apply a new doctrine of “relation,” never heretofore recognized, which needs no prior equity to support it: thus dispensing with that which has always heretofore been of the very essence, the fundamental basis, of the rule. And what injustice, inconvenience, and confusion would result from such an innovation, may readily be imagined, by its application to the case before us, under a probable variation of its circumstances, which would not in any wise change the principle. Suppose the Chesapeake and Ohio Canal Company not to be in existence until ten years. hence and *247that during that period, under the faith of their charter, the Rail Road Company had completed their entire enterprise to the banks of the Ohio. What, upon this new and extraordinary doctrine of relation, would be their predicament? Why, the Canal Company, then, for the first moment, coming into being, might locate their works upon the identical ground occupied by the rail road, from Parr's Spring Ridge to the waters of the Ohio, and not allow the Rail Road Company one dollar, for the millions expended in the execution of their work. If such be the doctrine of relation, founded on equity, I am at a loss to conceive, what would be termed “relation,” founded on iniquity.

But if “relation” be admitted into the case, to what period are the rights of the Canal Company to be translated ? Is it to 1823, when Virginia passed the law, or to 1824, when Maryland adopted it, or to the date when Congress sanctioned it, or to the time when any of its supplements were passed ? The difficulties and absurdities attending an affirmative answer to either of these questions, unequivocally show, that, to neither of those periods can it be carried : but, that you must go hack to the common sense of the case, and fix the time of their acceptance of their charter, as the origin of their rights. The legal subscription of the requisite amount of stock being such acceptance.

It is contended, also, that this charter making the canal a public highway, forms an exception to the general rule applicable to such subjects; and must be regarded as a dedication to public uses: and therefore, effects the immediate transit of the powers of the State. The answer to this suggestion is the same, that was given to the alleged operation of the principle of abeyance. The doctrine of the dedication to public uses is founded on the same necessity, which must exist to support abeyance. It is only resorted to, where the thing granted was intended to pass immediately from the grantor ; where its remaining in him, was utterly inconsistent with the grant. Is that the ease before us? Was any thing more designed by the legislature, than *248an eventual grant; a transfer of rights upon the formation of the corporation ? Until that event occurred, nothing passed; neither the operation of the grant, in the fullest extent of its terms, and expressions, nor the intention of the grantors, nor any principle of law, require that it should. But would this discriminating feature, if admitted, be of service to the appellants ? Concede, that so far as the public are concerned, the rights of the State vest in them. Does that exclude the power of future legislation on the subject? Nay, is it not the very circumstance that gives to the legislature full power and control over it ? It is a concession in all the cases of this character, where 'the power of the legislature has been drawn in question, that over a grant affecting public rights and privileges, the right of future legislation is undeniable, and uncontrolled. The constitutional prohibition, as to impairing the obligation of contracts, has no application to such a grant. . It is only to private, not rights in their nature public, that this salutary safeguard was designed as a protection. If then, for these public purposes, the rights of the State passed into immedi- - ate dedication, at the date of the act oí assembly, there being no intervention of private vested rights to prevent it; the legislature might at any time resume its powers, or pass, any law upon the subject, which its discretion might suggest. Until such private rights intervene, this dedication to public purposes, which is but the creature.of the legislative will, exists but at its pleasure. Suppose, by act of. assembly commissioners were appointed, to condemn and : open a designated road, and hold the same for ever after, as ,¡ a highway, for the use of the public. Could not the legislature, by any subsequent law, limit, change, or repeal their powers? It cannot be denied.

I have been insensibly drawn into unnecessary prolixity and detail, in the examination of this part of the case, because it appeared to me from the efforts made upon it by,, both parties, that it was considered the prominent point in , *249the cause. The other questions, I shall treat with more brevity.

Assuming, that I am right in the views I have thus far taken of this case; the pretensions of the appellant are attempted to be sustained on the ground, that Maryland, Virginia, and the United States, entered into a contract, and were bound to each other, that the Chesapeake and Ohio Canal might be made upon the terms stipulated in its charter ; and that any attempt, therefore, by either of those contracting parties, separately to repeal, change, or modify, any of its provisions, was unconstitutional and void, as impairing the obligation of a contract. If in truth, there be such a breach of faith on the part of Maryland, as is complained of, it might, with some show of reason, be said that it is Virginia only, which has a right to complain. The Chesapeake and Ohio Canal Company having accepted their charter, with a knowledge of its qualification, as made by Maryland, stands not with a good grace before a court of equity, as the voluntary asserter of Virginia's rights: who for ought that appears, acquiesces in those acts, which form the subject of complaint. Nay, she has actually assented to them, by passing the rail road charter. Having accepted the charter in the condition in which they found it, they have no equities, by which they can be subrogated to the rights of Virginia, if she had any. The United States not having complied with the conditions, on which alone Maryland consented to be bound, until after the alleged violation of the contract, there would be but little equity on their part, to which the Canal Company could fall heir.

But where is the evidence, that such a contract was ever made by these sovereign States? It is, say the learned counsel, the necessary inference to be drawn from their acts of legislation. This is not the mode in which independent governments make compacts. Their engagements with each other, are not entered into in the same loose, unauthcntic manner, in which the ordinary transactions of man- ■ kind are conducted, where much rests on parol, and de*250pends on inference and conjecture. But all their contracts are matters of express stipulation, formally drawn up by learned and skilful agents, fully disclosing the character of their agreements; and for the most part, preserved in their public archives, as matters of record. Whether there be a contract between them, is never a question depending on remote inference, or vague implication ; but is ever a subject of express declaration. Where then is the evidence, of the negotiation on which this alleged compact is founded ? It is not even insinuated that it exists any where, unless it appears on the face of their acts of legislation. Does it so appear; let me ask ? Is there a word or syllable in any of those laws, which intimates such an agreement ? Does the preamble recite it ? Do any of the enactments affirm it ? Or is there, in their numerous statutes relating to this canal, a word or sentence, which does not receive its full and natural import’ upon the assumed fact, that there was no such pompaet ? And are not all their enactments in relation to the canal, with their various forms and qualifications, consistent and natural, as, the regular offspring or result of spont.aneous? concurrent legislation, modified by the peculiar circumstances, and combination of interests, in which the parties were situated, independently of all compact on the subject; ? But stamp on their acts the character of contract, and how; stand the legislatures of Virginia and Maryland? Convicted of a wanton and wilful violation of the constitution of the United States, which they had sworn to support They not only, do not ask the assent of the United States to their compact, as it is now called, but expressly declared that Congress shall not assent to their act upon any other, authority, than “as the legislature of the District of Columbia.” And the Congress of the United States, represented as one of the three sovereign parties to this unconstitutional compact, and consequently, alike cognizant of its nature and unconstitutionality, in violation of their duty and their, oaths,” as the legislature for the District of Columbia, sanction and affirm it. Can more conclusive evidence be *251desired, that there never existed such a contract as is alleged, between the three governments, than the bare statement of the consequences, which would follow such an unnatural presumption ? Could any thing short of the most irrefragable proof of the fact, induce any court of justice, much less this grave and reflecting tribunal, to cast such an imputation, not only on their own legislature, the high and predominating co-ordinate branch of their own government ; but upon the legislature of the Union, and also upon that of one of the most enlightened States in it?

It has heretofore been a maxim, as well of ethics as of law, that presumptions are to be raised in favor of innocency of intention. But in this case, it does appear to me, that we are called on, in favor of the Canal Company, to invert the order of every thing which stands ih the way of the aecomplishment of their designs.

It is urged, that it must be the contract of the sovereign States, because each State legislates for the canal, through its whole extent: as well on subjects within its own limits and jurisdiction, as those in other States through which it passes. But is this conclusion warranted by the charter? Did Maryland intend, in virtue of her legislation, to give title to the Chesapeake and Ohio Canal Company, to lands or other property in Virginia, or vice versa ? Where the necessity? What the object of the States in mutually delegating, or exercising such an anomalous, if not incommunicable power: even upon the supposition, of the cánal charter, being a compact between them ? None can be suggested. The common sense, the legal interpretation of their acts, is, that the legislation of each State should operate to the extent of its limits, and no farther, as regards the rights and powers transferred to the Canal Company. But that each State, as they well might do, (independently of all authority, interchangeably communicated,) did impose restrictions, by way of condition, extending beyond its territorial limits. As for example; that no higher toll should be exacted on any part of the canal, than that specified in the *252law. With as much propriety, may it be said, that the rail road charter is a compact between the States, through which it must pass; the 4th section, enacting, “that the president and directors of said company shall be, and are hereby invested with all the rights and powers necessary to the construction and repair of a road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined;” the 15th section, authorising the acquisition of title to the site, &e. of the road, by agreement or condemnation, through the entire route; and the 18th section, containing a similar restriction, as to tolls; and providing, that the capital stock of this company “shall be exempt from the imposition of any tax or burden by the States, assenting to this law.” Thus continuing the similitude by showing, that the assent to it, was to be given by other States than Maryland. And Virginia did assent to this law. Yet I believe the idea never entered the imagination of man, that a compact was thus formed between Maryland and Virginia.

So far from the restriction in the canal charter, as to tolls, indicating a contract between the States, because each, in passing the law, thus undertakes to establish a rate of tolls, beyond its proper territorial jurisdiction, it shows the reverse. If the charter was a compact between the States, then the limitation in its 10th section, that the tariff of tolls shall not exceed “an average of two cents per ton per mile;” was all sufficient to prevent its ever exceeding that limit: and bound, and protected all the parties. No further provision on the subject was necessary: because, it being the contract of the three sovereigns, the assent of all was indispensable to any change or modification of its terms. And had it been attempted, under the legislative sanction of either of the Stales, the article of the constitution of the United States, forbidding the State to pass a law impairing the obligation of the contracts, would at once have checked such unconstitutional exercise of power. But not having entered, nor designing to enter into any such compact; and *253knowing, therefore, that without some further enactment, the company could by consent of any of the States, within their respective limits, raise or alter the tolls, in any way they pleased, they wisely added the following prohibition, to the 14th section; “ and no other toll or tax whatsoever, for the use of the said canal, and the works thereon erected, shall at any time hereafter be imposed, but by consent of the said States, and of the United States.” Construe this a compact between the States, and this sage addition to their law becomes superfluous, unmeaning tautology. Can you, under circumstances like the present, upon any rule of construction ever heretofore adopted, cause it to be so regarded ? The compact in this section, and throughout the charter, is not between the States themselves, but between the Chesapeake and Ohio Canal Company, when it shall spring into life, as the one contracting party, and the three several States or sovereignties, as the other. If a compact between the States themselves had been intended, the application for the assent of Congress, agreeably to the requisition of the constitution of the United States, would have followed as a matter of course. For the necessity of such assent, authorities need not be cited. If such assent be necessary to a cession of part of its territory, by one State to another, as has been adjudicated, and is admitted; it is equally necessary, when two States enter into a contract, by which they bind themselves to each other, to cede to a corporation, highly important streams of navigable water within their limits, and authorise the cutting of canals, &c. in either State: and for that purpose, to exercise the right of eminent domain in both States.

Suppose A, B, and C to bo proprietors of three contiguous farms, through which D is about to construct a turnpike road, or any other improvement, that if completed throughout, would be highly beneficial to all; but, if not so completed, so far from being a benefit, it would be injurious to those through whose lands it might be made; and might be the means of defeating the accomplishment of some simi*254lar work, which would otherwise have been ultimately effected. D first applies to A, for permission to make the road, who grants it on condition, that no greater toll than one cent per mile be demanded: and further, that B and C assent to the making of the road through their farms on the same terms. B and 0 on being separately applied to, give such assent. Between A, B and C, no communication on the subject, of any nature or description ever passes. Before the work commenced, A by the consent of JD, or under circumstances in which D’s rights were not violated, withdraws his permission. Can he not lawfully do so ? Has B or C any right to complain, that he has broken any contract, made with them? Unquestionably not. Can the human mind, aided by all the discriminating acumen and subtilty of the profession, draw a distinction in principle, between the casé supposed, and that we are now called on to décide, except that the latter is much the stronger case ? What A, B and C did, Virginia, Maryland, and the United States have done; ánd nothing more. The decision in both cases, must be the same. In confirmation of this idea of a contract between the three sovereigns,Jit may be asked ; if after the complétion of the said canal, Congress had repealed their law, assenting that a lateral canal be made by Maryland through the District of Columbia, could not Maryland have proceeded to make such lateral canal, in despite of such repealing law, on the ground that it was a nullity, being a law impairing the obligation of a contract? Unquestionably it might. But what contract did it impair? Not any contract between Congress and the State of Maryland; for none such existed; but the contract between Congress and the Canal Company. And the State of Maryland having the right to make such lateral canal, by their contract with the Canal Company, and Congress having been bound by their contract with the Canal Company, to permit Maryland to make such lateral canal, in contemplation of a court of equity, to prevent circuity of action, Maryland is subrogated to all the rights of "the Canal Cork*255pany on this subject, and standing in the stead thereof, may assert the unconstitutionality of the repealing law of Congress. Or may, in such character, to the extent of their injury, prosecute in a Court of Chancery, any other remedy for the breach of such contract, which the Canal Company could there maintain. This is so familiar a principle of a court of equity, that to sustain it by further illustration or authorities, cannot be necessary. But Maryland could be relieved against this repealing law, either in a court of law or equity, on the ground of fraud, (which would avoid it,) independently of any contract between Congress and Maryland. Congress had by contract with the Canal Company, agreed that Maryland should exercise the power. Upon this assent the conditional contract of Maryland with the Canal Company became absolute; the Canal Company, as they were authorised to do, finished the canal. A subsequent revocation of this power by Congress, independently of all idea of their contracting with Maryland, would be a rampant fraud, which no court of law or equity would tolerate. Let us imagine, that in the preceding hypothetical case of A, B, C and D, there was not only no contract between A, B and C, hut they severally refused to hold any intercourse or contract in any shape, with each other: yet, after the road was finished through the farms of A and B, that 0 refused to permit D to progress with the road through his farm, to the great injury of A and B. Can it be doubted, that A and B, independently of contract between them and C, but upon the several contracts by A, B and C, with D, might obtain an injunction against C, to prevent his obstructing D in the completion of the road. It is a proposition that admits not of denial. So if, under the repealing law of Congress, any of their agents, or those who were hound by their legislation, prevented the opening of the lateral canal, in the mode prescribed by the repealed acts of Congress, a similar injunction would issue against them.

In confirmation of the remarks I have made, as to the clear and unambiguous language _used by sovereign States, *256in contracting with each other, or in consummating a contract by legislation, look to the act of assembly of Maryland, passed at November session, 1785, ch. 1; and, comparing it with the charter of the Chesapeake and Ohio Canal Company, see whether the evidence of compact, on the face of both laws, be in character the same; As to the canal charter, the inference of compact is reached by a forced unnatural construction, not deducible from the objects of the law, or the circumstances under which it passed, nor necessary to gratify one word or expression in it; and involving consequences, which every principle of courtesy, candor, and sound judicial interpretation, prompt us to avoid, by the rejection of such an inference. But turn to the former law, and the compact is so conclusively demonstrated by its title, its preamble, the terms and expressions of its enactments, that nothing is left for inference or conjecture. This is the mode in which sovereign States treat, or form compacts with each other. The title expressly announces “the compact;” the preamble most minutely recites it; and the enacting clause ratifies and confirms it, and declares that, “as soon as the said compact shall be approved, confirmed and ratified, by the general assembly of the commonwealth of Virginia, thereupon, and immediately thereafter, every article, clause, matter and thing, in the said compact contained, shall be obligatory on this State, and the citizens thereof, and shall he forever, faithfully and inviolably observed, and kept by this government and all its citizens, according to the true intent and meaning of the said compact; and the faith and honor of this State is hereby solemnly pledged and engaged to the general assembly of the commonwealth of Virginia, and the government and citizens thereof, that this law shall never be repealed or altered by the legislature of this government, without the consent of the government of Virginia.” If the same inference of compact is drawn from these two acts of assembly, so utterly dissimilar, in that respect, in every feature and provision, the old legal axiom, uet 'sic dé *257similibus,” should be changed, and it should now be ilet sic de insimilibus.”

The appellants have also insisted, that their charter, upon the assent to be given, in the mode prescribed by the Potomac Company, was a contract between the Potomac Company and the States, of which the charter of the Baltimore and Ohio Rail Road Company was a violation. How many contracts, this charter, so prolific of contracts and litigation, may be alleged to contain, when passing through the ordeal of such professional ingenuity as has been applied to it, on the present trial, 1 am at a loss to conjecture. But, it appears to me, that the same arguments which have been urged against a compact between the States, for the most part, apply with equal force, against any such implication with the Potomac Company. The assent of that company, in reason and justice, can be regarded in no other light, than as an offer of a bargain to the Chesapeake and Ohio Canal Company, which, like all similar propositions, until accepted, was revocable, at the pleasure of the Potomac Company. To construe it otherwise, would be an act of unexampled, cruel injustice to that company. The Chesapeake and Ohio Canal Company could not be formed, until the Potomac Company had given their assent; they might not have been organized for a hundred years afterwards. Yet during all this period, the Potomac Company were to go on, expending their money in removing obstructions in the river, and improving its navigation by locks and canals; and, when, pérhaps by dint of these expenditures to facilitate transportation, they are about to be re-imbursed, without the power of extricating themselves from their dilemma, they are to be divested of all the fruits of such their labors and disbursements, and for which no reimbursement or indemnity in any shape, is allowed. And what equivalent are they to receive for this ? A mere possibility; remote and improbable, as to any beneficial result; the chance, that after all other stockholders receive ten per cent., there may ho *258something left for them. Some possible dividend may be made on their capital stock, but nothing on such their disbursements. It may be said, that they ought not (their assent being given) to have continued such expenditures. But what was their alternative ? Why, to forfeit their charter, and all that had theretofore been expended. Draw from such their assent, the inference of contract, and they cannot escape the consequences I have mentioned. Should a court of equity, as we now are, be astute and technical, in seeking out a construction fraught with such injustice?

It has also been insisted, that, a subscription to the stock of the Chesapeake and Ohio Canal Company having been commenced, no matter to what amount such subscribers had acquired rights, which could not be impaired by any act of the legislature of Maryland, affecting the terms and conditions on which such subscription was made. This is true, so far as regards the coercion of the subscribers, to comply with the obligations assumed by subscription, but no further. There is no contract, under the charter of that company, between the State and the subscribers, qua, individual subscribers. The only contract that could arise, was between the State and the Chesapeake and Ohio Canal Company, when brought into being by the subscription of the requisite amount of stock. Before that took place, every thing was in fieri. Then, and not till then, are the legislative powers of the State suspended by the constitutional interdiction; then, and not before, does it impliedly contract, not to revoke, or impair the rights and privileges it has granted. To this extent, and no further, have the Supreme Court gone in the Dartmouth College, and other cases on the subject. The acts, done at the time of subscribing for stock, are, of themselves, nothing more than a compliance with the mode, by which the assent, to become members of the corporation, is given; and never were designed to create a contract between the State and the individual subscribers. With as much propriety, may it be .said, that, if any article of pro*259perty were offered at public auction, and by the terms of sale, no bid were to be received, unless he who made it, in assurance of his punctuality, should deposit with the auctioneer, one dollar,—that upon such bid being made, and payment of the dollar, the owner could not decline proceeding with the sale, or offering it upon new, or different conditions.

It has been said, that “the charter of the Chesapeake and Ohio Canal Company, was granted upon individual application; that individuals had spent their time and money, in procuring the information, upon which the legislature acted, in granting it: and that this expenditure was a consideration, which was sufficient to make the contract binding on the State, from the date of the charter; that these individuals were, in fact, the parties interested, and not the persons who subsequently subscribed, and became corporators under the law.” This argument is, I believe, at least entitled to the merit of novelty; but, it passes no encomium upon the strength of a cause, which, in a court of last resort, finds it necessary to invoke it to its aid. If the State be thus bound to these persons, then, have they, under the canal charter, rights above all others: and consequently, a prior right of subscription? Yet no such priority exists. Or if so entitled, the contract, I presume, is mutually obligatory, and they are bound to become members of the corporation. Can they be compelled to become so ? And how ? Is it possible, that this court, on grounds like these, would venture to declare an act of the general assembly of Maryland, unconstitutional?

But it has been alleged, that although the appellants should fail on all the other grounds, on which they have attempted to sustain their asserted priorities ; yet, that they are clearly sustainable, under the powers long since granted to the Potomac Company, and to which they have been substituted. Before I enter on the examination of this question, let it be premised, that what I say on this subject, relates not to the rights of the Potomac Company, or *260their successors; to the bed of the river, or to any canals or works which they have constructed. The location of the rail road, as I understand it, interfering with no such rights. The preliminary inquiry arises, what was the character and design of the Potomac Company's charter? What were the powers granted? And for what purpose given? On these heads a glance at the act of assembly would satisfy any reasonable mind: but to obtain demonstration on these subjects, all that is necessary, is to compare it with that of the charter of the Chesapeake and Ohio Canal Company, The preamble to the charter of the Potomac Company gives us the design of its authors, in the following words: “Whereas the extension of the navigation of the Potomac river, from tide water to the highest place practicable on the north branch, will be of great public utility: And whereas it may be necessary to cut canals, and erect locks and other works on both sides of the river,” &c. That a continuous canal between the termini of this navigation, was not designed by the legislature: that a delegation of the powers necessary to its construction, was never intended, is to my mind a proposition so manifest, that I can hardly prevail on myself jto believe, that arguments are necessary to throw light, as to this subject, on the mind of the most superficial interpreter of the law. The preamble declares, uit may be necessary to cut canals." For what? “The extension of the navigar tion of the Potomac river.” And in conformity herewith, the 4th section of the law transfers to the company the authority “to cut such canals, and erect such locks, and perform such other works, as they shall judge necessary for opening, improving, and extending the navigation of the said river." The 10th section enacts, that the said river, and the works to be erected thereon, in virtue of this act, when ,completed, shall forever thereafter be esteemed and taken as a public highway, on payment of the tolls imposed by this act. The 17th section declares, “that the tolls herein before allowed to be demanded and received at the nearest convenient place below the mouth of the south branch, are grant*261ed, and shall be paid on condition only, that the said Polo-mac Company shall make the river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the place on the north branch, at 'which a road shall set off to the Cheat river, agreeably to the determination of the general assemblies of Virginia and Maryland, to and through the place which may he fixed on, below the mouth of the south branch, for the receipt of the tolls aforesaid; but if the said river is only made navigable as aforesaid, from Fort Cumberland, to and through the said place below the mouth of the south branch, then only two-thirds of the said tolls shall be there received; that the tolls hereafter allowed to be demanded and received at or near Payne’s falls, are granted, and shall be payable on condition only, that the said Potomac Company shall make the said river well capable of being navigated in dry seasons, by vessels drawing one foot water, from the said place of collection, near the mouth of the south branch, to and through Payne’s falls aforesaid; that the tolls hereinafter allowed to be demanded and received, at the Great Falls are granted, and shall be payable on condition only, that the said Potomac Company shall make the river well capable of being navigated in dry seasons, from Payne’s falls to the Great Falls, by vessels drawing one foot water, and from the Great Falls to tide water; and shall, at or near the Great Falls, make a cut or canal, twenty-five feet wide, and four deep, with sufficient locks, if necessary, each of eighty feet in length, sixteen feet in breadth, and capable of conveying vessels or rafts, drawing four feet water at the least; and shall make at or near the .Little Falls, such canal and locks, if necessary, as will be sufficient and proper to let vessels and rafts aforesaid, into tide water, or render the said river navigable in the natural course.” And the 18th section provides,, “that in case the said company shall not begin the said work, within one year after the company shall be formed, or if the navigation shall not be made and improved between he Great Falls and Fori Cumberland, in the manner here*262in before mentioned, within three years after the said company shall be formed, that then the said company shall not be entitled to any benefit, privilege or advantage under this act; and in case the said company shall not complete the • navigation, through and from the Great Falls to tide water -as aforesaid, within, ten years after the said company shall be formed, then shall all the interest of said company, and all preference in their favor, as to the navigation and tolls at, through, and from the Great Falls to tide water, be forever forfeited.” . Adverting to the language of this charter, that the thing to be made navigable and a public highway forever, was the river of one foot depth: to the time within which the work was to be completed, viz: in three years, from the Great Falls to Cumberland; and ten years, from the Great Falls to tide water; (thus giving where one or more canals were to be cut, more than thrice the time that was allowed to complete the residue of the work, where no can-nailing of any moment was required or anticipated, but where the distance was ten times as great, and the labor and expence necessary to the completion of a continuous canal, tenfold greater,) and adverting to the power given to cut canals, which was of such only, as were “necessary” to render the “river” navigable; to the original subscription $220,000, (by which it was contemplated to accomplish the object, for which the company was organized,) an amount insufficient to construct the canal for three miles, at many of the difficult passes between the Great Falls and Cumberland. Can it be believed that the design of the legislature was, that a continuous canal should be made throughout the whole course of the navigation to be improved ? Or that they gave sueh a power, when they authorised the cutting of “such canals” as were “necessary” to make the “Potomac river” a navigable public highway. When such power is given, the language of the legislature discloses their intention. As in the preamble to the Chesapeake and Ohio Canal Company's charter, the first words of which are, ^whereas a navigable canal, from the tide water of thé river *263Potomac, in the District of Columbia, to the mouth of Savage creek, on the north branch of said river,” &c. “will be a work of great profit and advantage,” &e. Not a word throughout the law, about the extension or improvement of the navigation of the “river.” The cutting the continuous canal, and erecting its appertenant works, were objects for which the legislature designed to provide: and for their accomplishment, ample powers were given.

By the 13th section of the charier of the Chesapeake and Ohio Canal Company, that company are invested with all the property, rights and privileges of the Potomac Company, “in the same manner and to the same effect as the said Potomac Company now hold, possess, and occupy the same by law.” In no other way, for no other “effect,” or purpose, can the Canal Company exercise the “rights and privileges” of the Potomac Company, but for the effects and purposes, contemplated by the charter of the Potomac Company. The same interests and powers, and nothing more, accrue to the Canal Company, exerting the “rights and privileges of the Potomac Company” in cutting an occasional canal, or making any improvement in the navigation of the river, as would, before the charter of the Canal Company, have accrued to the Potomac Company, performing the same work. Although the property of the Potomac Company passes to the Canal Company, to he used as they see fit, taking care that their rights are not forfeited under the provisions of the Potomac charter; yet they have no right under that charter to cut a canal, not necessary to improve the navigation of the river as there provided for, but with a view of using it as the canal authorised by the charter of the Chesapeake and Ohio Canal Company. Such a fraudulent device to over-reach the prior rights of the appellees; such deceitful trickery, would not for a moment be tolerated by a court of equity. If, after completion of the Chesapeake and Ohio Canal, or pending the execution of the work, the Canal Company keeping the “river Potomac” navigable, as required by the Potomac charter, were to *264collect the tolls authorised thereby ; their right to do ' so could not be the subject of a doubt. If, to effectuate such navigability, it should be necessary to cut a canal at any difficult pass of the river, (putting out of view, the time limited for the completion of their work,) their power to do so could not be brought in question. But what tolls could be demanded for the use of such a canal ? None other than those specified in the Potomac charter. Was it the in-' tention of the Chesapeake and Ohio Canal Company to collect, for the use of that part of the canal they were locating, in collision with the location of the Baltimore- and Ohio-Rail Road Company, no other tolls than those sanctioned by the Potomac charter? Was it their design, merely to cut a canal, necessary to make navigable the “river,” in the mode contemplated by the canal charter ? If so, then, it may, in fairness be said, they were acting under the powers, possessed by the Potomac Company, But would the candor of their counsel permit them to throw out such an insinuation? Would the Canal Company for a moment, entertain the idea of making the canal from the Point of Rocks to Cumberland, (the battle ground) on such a condition? Nobody can believe it. Suppose' the Canal Company, to draw the whole trade of the river into the canal, (after its completion) or for any other motive, were to suffer obstructions to accumulate in the river,' until it ceased to be navigable, as provided for in the Poto-' mac charter, and that charter, in consequence thereof, by judgment of a court of law, were forfeited: would the Canal Company, thereby, lose all title to that part of the canal, between the Point of Rocks and Cumberland. If it-were made under the powers given' by that charter, the consequence is inevitable; it must be conceded. Do the Canal Company admit it? They would hesitate long, before they did so. The undeniable fact is, that the Canal' Company were locating that grand canal, provided for by the Chesapeake and Ohio Canal charter, and not any canal, contemplated by the charter of the Potomac Company; ■ *265How then can they be regarded as acting, under the powers delegated by the Potomac Company’s charter? In my humble apprehension, it is impossible to sustain them, under this, their last expedient to defeat the well established rights of the Baltimore and Ohio Rail Road Company. To do so, would be to strain, beyond all reason, the letter of the statute, for the purpose of violating its spirit and obvious import: to give countenance, nay, encouragement, to fraudulent contrivances and ingenious deceits, which they have never yet received in any tribunal of equity.

The inquiry on this point, the answer to which, settles this question, is most simple. Were the acts of the Canal Company, against which the injunction issued in this case, done in execution of the enterprise contemplated by the Potomac charter ? or in execution of the great work, provided for by the charter of the Chesapeake and Ohio Canal Company? If the former, then the Potomac Company being first legally constituted, it may be contended, that they are entitled to priority in the selection and appropriation of the route; and the injunction granted to the Rail Road Company should be dissolved. But, on the other hand, if the acts of the Chesapeake and Ohio Canal Company, complained of, were done, not in completion of the works provided for by the charter of the Potomac Canal, but in execution of that stupendous canal, alone contemplated, and authorised by the charter of the Chesapeake and Ohio Canal Company, then the Rail Road Company, being the senior corporation, and having first made their location, are clearly entitled to all the priorities they claim; and the injunction of the Chancellor should be made perpetual.

But, suppose the Potomac Company had, as insisted, originally, under their charter, a power either to have made a continuous canal, or to have improved the navigation of the river by occasional canals, or wholly by sluice navigation. Having once made their selection of the mode, and exercised, as they have done, the right of eminent do*266main, in cutting occasional canals, that power cannot be again exerted, in the making of a continuous canal. The desired improvement being made in one mode, this transcendent power cannot afterwards be exerted in affecting it in another; otherwise, a continuous, and an occasional canal, might both be cut through the lands of the same individual : an invasion of private rights, a wanton oppression, which the public exigencies at that time, did not require, and which, the framers of the Potomac charter never designed to give to that company.

Feeling entire confidence in this view of the subject, that no such power was derived from the Potomac Company, as that which brought the Chesapeake and Ohio Canal and Baltimore and Ohio Rail Road Companies in collision, I deem it unnecessary to examine the much vexed question, whether, if the Potomac Company originally possessed such a power, it could be exerted after the time limited by the 18th section of their charter, for the completion of the improvement of the navigation of the river.

On the part of the appellants, it has been further urged, that the acts of the general assembly of Maryland, in relation to the route of the rail road, conferring a general power of location, uncontrolled by localities, are to be so restricted, in their interpretation, as to exclude the right of interfering with the site of the canal; which, by its charter, is specifically located, on the eastern bank of the Potomac. Rut this position is untenable, because it is wholly unfounded, in fact. It is not true, that in the Chesapeake and Ohio. Canal charter, there is any specific location given to the canal, confining it to the eastern or western bank of the Potomac, or to either of the banks of that river. The 19th section of the law, which alone defines the route and termini of the canal, declares, “that the first, or eastern section, shall begin at the District of Columbia, on tide water, and terminate at, or near the bank of Savage river or creek, which empties into the north branch of the Potomac, at the base of the Alleghany moun*267tain.” Can human ingenuity torture this into any more definite location of this section of the canal, (which only, is involved in the present controversy,) than as fixing its termini? Can it be possible, judicially to determine, that the true import of these expressions, is, that the canal shall commence at tide water, in the District of Columbia, and thence follow the ravine of the Potomac to the bank of Savage creek? Is there any thing in the law, or the reason of the law, that could thus fetter its construction? Suppose it had been ascertained, by actual surveys and calculations, made by experienced engineers, aided by the superior and extended lights of science of the present day, as applied to the art of canalling; that, after receiving into the canal the waters of the Potomac, at the Great Falls, instead of following the sinuosities of that river, by means of its tributaries, and through the interior of the country, on its eastern shore, the canal could be conducted to the bank of Savage river, by one-half the distance—at one-third of the expense of labor and money—and in a way to give transportation to three times the quantity of produce, that it would otherwise have borne; could the power of the company, so to construct it, be the subject of a momentary doubt ? Admit this power, as you must do, and all this notion of a specific location of the canal, by its charter, of which we have heard so much, vanishes in a moment. For, if the canal be located by its charter, the company possesses no discretion to depart from it. Nor does the preamble, as was supposed by the argument, sustain, in the slightest degree, this doctrine of specific location. Every letter of it is complied with, in exercising the discretion used in the suppositive case, 1 have suggested.

But it is alleged, that this specific location of the canal by its charter, is demonstrated, by reference to that mass of surveys, reports, dissertations, resolutions, &c. with which the record has been loaded. Or, in other words, that we are to collect the meaning of the legislature, not from the terms used by them, which are explicit, unambiguous, and *268full in a pre-eminent degree; but by imputing to them a knowledge of facts, of which there is no evidence, (nor indeed could there be,) that they ever possessed, or if they did, upon what part of it they acted; we are to infer they meant the very reverse of what they have said. This would be stretching the power of judicial legislation, rather farther than the most zealous admirers of the maxim, uest boni judicis ampliare jurisdictionem,” has ever yet extended it. It would be enacting, not expounding the law. Conceding, however, that we possess the power to do so; and, that upon these voluminous documents, we are now about to declare, the legislature to have done, what, according to our opinion, they ought to have done ; and what is that? Why, to give to the Canal Company that discretion which they ought to possess, of locating the canal where the lights of improved science, expendiency, the great interests of the community, and the successful accomplishment of the enterprize, would dictate: and not tie them down to a location recommended by resolutions passed by conventions, less interested and enlightened, perhaps, than themselves: or recommended by surveys made ten, twenty, or fifty years before. This is the course, pursued by the legislature in this instance; and according to my view of it, is the only action on the subject, which an independent, and enlightened legislative body could have adopted. Indeed, from these documents, no certain, and specific location of the canal could well have been made, as scarcely any two .of them agree in that respect. Some confining the canal, on one side of the river Potomac; some on another; some crossing the river often; some seldom; and perhaps some in one place, and some in another. Had a definite location been given to the canal, it would have been of a piece, with the practice so generally complained of, in locating turnpikes, and great public highways, with calls for all the little towns or villages, in the vicinity of which, they might probably pass. Had the legislature intended to make a peremptory location of the canal, they would have used apt words for *269that purpose; as they did, in providing for the second or western section, (in the clause immediately following that before recited;) which say they, “shall commence at the «aid termination, and extending along the valley of Savage creek, so far as the same,” &c. In not doing so as to the first, and doing so as to second, they distinctly announce the discrimination they designed to make, in the locations of the two sections. The utter silence of the law, as to any designated site, of the first section of the canal; its omission to select or adopt any of the numerous surveys, that had been made; is conclusive of the fact, that the Canal Company were left, as they should have been, to an unlimited freedom of choice. In which, they might be influenced by every circumstance, tending to control their choice : whether it related to the obstructions to be removed; the time and expense, necessary to be consumed in doing so; the length of the route; the commercial or transporting facilities to be afforded; their pecuniary ability to accomplish the objeet, or any like consideration.

.But it is insisted, that, although, this court should be of opinion, there is by the charter of the Canal Company, no precise location of the canal, confining it to the margin of the river Potomac, yet that it is specifically located in the territory, watered by the Potomac, and attaches upon all the lands within such territory, and so continues, until the actual location of the canal. To recognize the principle of abeyance, as asserted, would be mercy to the landholders of that immense section of country; when we advert to their condition under the notion of this immense canal: whose location occupies the space for a sea, instead of a canal. The effect of abeyance of the power of eminent domain, would be to prevent the laying out of public highways, or the condemnation of land, for any improvement whatever: in the individual improvement and enjoyment of their lands, the owners were left unrestricted as heretofore. But, the effect of this sort of legislative location of a canal, which is to spread over a section of country of perhaps two hundred *270miles in length, and more than one hundred in breadth, to the exclusion of all acquirements of intermediate rights, is to me a proposition so new and incomprehensible in its character; so appalling in its consequences, that I can with difficulty persuade myself, that it was “put forth in sober earnest.” If it be sustainable, not only is the State bound by it, but no landholder within the sequestered district, could lawfully do any act by which this franchise of the Canal Company could be changed or impaired. To the whole extent of country then, watered by the Potomac and its tributaries, containing two or three hundred thousand square miles, this right of the Canal Company so attaches, that after the date of their charter, no proprietor of land can build a dwelling house, or mill, or erect any building or improvement upon his property, without incurring the risk of having his buildings and improvements razed to the ground, without any compensation or indemnity, other than what he would have been entitled to, had his property remained in the condition in which it was at the time the act of assembly passed. And where is he to look for indemnity for this suspension of his proprietary rights ? The law does not provide it. The contemplated corporation might not have been formed for a hundred years, after the date of its charter, and although during all that time, his hands are tied, he is deprived of the beneficial use and enjoyment of his property; yet for this sacrifice no remuneration is allowed him. But even after the organization of the corporation, and the accomplishment of the object for which they were incorporated; who are compensated ? All whose rights have been ruinously suspended ? No. Not one in ten thousand. Perhaps the property of not one, in a still greater number, would be touched by the canal or its appendages; and for those only is any indemnity provided.

Have the legislature of Maryland a power to pass such a law, had they so designed ? Certainly not. They can divest no man, agreeably to our constitutional safeguards, of *271the beneficial enjoyment of his property; but upon making adequate compensation therefor.

If, however, it were shown that the canal, by its charter was specifically located, or in any way located, the rail road charter with the acts done thereunder, is a repeal of it, so far as their locations interfere, above the mouth of the Monocacy; the rights of the Rail Road Company having been conferred on them by the legislature of Maryland, whilst their powers over the canal charter, were unrestricted by any constitutional prohibition. The Canal Company, not being then in existence, could be invested with no rights, nor be a party to any contract, which the legislature of Maryland could impair, or violate. The selection of the route for the rail road, had been adopted before the Canal Company had been ushered into being.

Nor is it true, as has been assumed in the argument for the appellants, that there is no power given to the Baltimore and Ohio Rail Road Company, so to locate their road, as to interfere with the location, now claimed by the Canal Company. The charter of the Rail Road Company, passed at December session, 1826, gives to the company the power of locating the road, in terms as unlimited as could be devised. They are “invested with all the rights and powers necessary to the construction and repair of a rail road, from the city of Baltimore to some suitable point on the Ohio river, to be by them determined: and they, their agents, and those with whom they may contract for making any part of the same, or their agents may enter upon, use, and excavate any land, which may be wanted for the site of said road.” If a power of location without restriction or exception of place, were designed to be given ; expressions more comprehensive for that purpose, could not have been selected. But it is not alone upon these broad and general expressions, that the rights of the Rail Road Company rests. By the 2d section of the act of 1826, the State of Maryland reserved the privilege of taking stock in the Rail Road Company, to the amount of 10,000 shares. *272By the 3d section of the act of 1827, passed the 3d March, 1828, the general assembly direct their treasurer to subscribe in their behalf, for 5000 shares of this reserved rail road stock, on condition, that the president and directors of the jRail Road Company “ shall agree so to locate said road, that it shall go to, or strike the Potomac river, at some point between the mouth of the Monocacy river, and the town of Cumberland in Alleghany; and that it shall go into Frederick, Washington and Alleghany counties.” To this condition, the president, directors and company of the rail road, assent: the stock is accordingly subscribed for, the money of the State received, and the rail road located accordingly. Yet, it is said under these circumstances, that the location of the rail road, “to go to, or strike” the Potor mac in the manner aforesaid, was a power not designed to be given to the Rail Road Company. It is impossible to go to, or strike the river, without interfering with the route claimed by the Canal Company. Having reached the river, the continuing the rail road up the same, is the natural, practically speaking, the necessary consequence, in order to comply with the requisition of the act of assembly, that the rail road should pass through Frederick, Washington, and Alleghany counties. If there could be any doubt, as to the operation of the act of 1826, when construed alone; it appears to me, that the legislative interpretation thereof, by the act of 1827, when no conflicting rights were in esse, to be affected by it, must forever remove such doubt. The act of Í827, acknowledges the power in question, to be in the Rail Road Company, by the act of 1826. These acts of the same legislature, in pari materia, are “to be construed together as one system.” In this view of the subject, can there be a question as to their construction on this point? But let it be conceded for the moment, that there were no words in the act of 1826, by which this power could be transferred. I hold it a matter, too clear for argument of illustration, that this power is fully delegated by the act of 1827.' At the time of its;passage, the legislature were fp,lly *273authorised to have granted this power. They agree to pay $500,000, on condition of its exercise by the Rail Road Company. Is not the inference irresistible, the implication of necessity, that they authorised the Rail Road Company to exert it ? To give to this act of assembly any other construction, would be to convict the legislature of Maryland, of an act of absurdity, prodigality and folly, which is without a parallel in the annals of rational men; they intended this, and could have intended nothing else. As well might it be said that if A pay to B $500, on condition that he would cut down, and haul off all the timber from fifty acres of A’s wood-land, that A gave to B no powers under such contract, but that he could sue B as a tresspasser or wrong doer, and recover of him damages for every tree he should cut or haul off.

Having by the views already expressed, disposed of the material points in this case, so far as is necessary, to the final decision thereof, I forbear to express any opinion on the point so elaborately, 1 was about to say unanswerably, argued by the counsel for the appellees, that conceding to the Canal Company, seniority of corporate existence, that their charter per se gave to them no priority of right, in any particular route for their canal. That such superiority of right, rested entirely on priority of selection, and that therefore the rights of the Rail Road Company were paramount. I am therefore of opinion that the decree of the Chancellor, making the injunction perpetual, ought to be affirmed.

DECREE REVERSED AND BIDE DISMISSED.