#### The South Carolina Railroad Company *vs.*The Columbia and Augusta Railroad Company.

*Railroads*— Nuisance—Delay *and Acquiescence, Injunction refused on the grounds of*— Construction *of*Charter— *Crossing*trade— *Compensation.*

Bill by.B, a railroad company which had existed many years, to enjoin C, another railroad company recently chartered, from the further construction of its road and from crossing B’s track, on the ground that C’s charter was a violation of B’s. B’s rightsbeing regarded as, at least, doubtful, and it appearing that there had been great delay in its application for relief— that it had acquiesced, for a long time, in the building of C’s road — that, during such delay and acquiescence, C had expended, and incurred liabilities for, large sums of money, and that the consequences to the stockholders of C, if it were enjoined, would be disastrous, the injunction was refused; hut the bill was retained and special orders made in reference to the crossing of B’s track and its right to compensation therefor.

A, a railroad company, was chartered in 1828, with the exclusive right to “make, keep up and use” a'railroad from Charleston to Hamburg, with branches to Columbia and Camden, and in 1833 its main trunk from Charleston to Hamburg was completed, but no branch was ever built. In 1835, another railroad company, B, was incorporated, whose charter authorized it to construct a railroad from Charleston to Cincinnati, with branches, and provided^ with reference to the main trunk only, that the State shall not “ authorize the construction of any other railroad within twenty miles of” the same, “which shall connect any points or places” thereon, “or which shall run in the general direction'thereof.” B purchased A’s road from Charleston to Hamburg, and then constructed its own road from Branchville to Columbia, stopping finally at the latter point. In 1843, by virtue of an Act of that year, “ all the rights, privileges and property” of A became vested in B ; and by charters granted in 1858, and 1863, C, another company, was authorized to construct a railroad from some point east of B’s track, in or near Columbia, to or near Hamburg. *Semble,*

1. That C’s charter was no violation of the corporate rights and privileges originally vested in A, by its charter of 1828, and by the Act of 1843, transferred to B;

2. That it was no violation of B’s corporate rights and privileges, under its original charter of 1835, nor of those vested in it by virtue of the Act of 1843i

*3403. That after B’s purchase of A’s road, and the completion of its own track from Branchville to Columbia, the main trunk of B’s road was the track from Charleston to Branchville and thence to Columbia;

4. That C had the right so to construct its road, that, from Graniteville to Hamburg, a distance of about’ twelve miles, it should run in close proximity to B’s road and parallel with it.

*Seld:*that C had the right to cross B’s road in or near Columbia, but that the Court had the power to fix the relative rights and duties of the parties in respect to the crossing, and to see that compensation was made; and that such power should in this case be exercised.

Railroad charters are, it seems, to be strictly construed against the grantees, and in favor of the public.

BEFORE CARROLL, CH„ AT CHAMBERS, COLUMBIA, APRIL, 1867.

The decree of his Honor, the Chancellor, is as follows :

Carroll, Ch. In this .cause there was first submitted, on behalf of the plaintiffs,-a motion for an injunction until further orders. But pending the motion, by an agreement of counsel, and with consent of the Court, the cause was simultaneously brought to a hearing. No hazard of irreparable injury to the plaintiffs, or other exigency, has demanded an earlier decision of the motion, and any further reference to it is rendered unnecessary by the decree now to be pronounced.

By the terms of their charter, the South Carolina Canal and Bailroad Company was empowered to construct a railroad from Charleston to the Savannah river, at or near Hamburg, and when such road should be completed, or before, if deemed practicable and advantageous, to *“*lay off and construct branches thereof” to the towns of Columbia and Camden. Their charter conferred upon that company *“*the exclusive right to make, keep up and use the railroad thereby authorized,” for and during the term of thirty-six years, to be computed from the time when the said railroad from Charleston to the Savannah river at or near Hamburg should be completed for transportation. That railroad was completed and went into operation during the year 1833.

*341By virtue of an Act of the General Assembly, in 1835, the incorporation of the Cincinnati and Charleston Railroad Company was effected. In the succeeding year, 1836, by another Act of the State Legislature, its name was changed to that of the Louisville, Cincinnati and Charleston Railroad Company. Within two years 'afterwards, that company, after purchasing from the South Carolina Canal and Railroad Company the entire road from Charleston to Hamburg, proceeded to continue the railroad from Branch-ville to Columbia, and completed it in the summer of 1842. By a subsequent Act of the General Assembly, in 1843, the name of the Louisville, Cincinnati and Charleston Railroad Company was changed to that of the South Carolina Railroad Company, and it was enacted, that whenever the written consent of all the stockholders of the South Carolina Canal and Railroad Company should be obtained, that company should be merged into the said South Carolina Railroad Company, and, “ thereupon and thereafter, all the rights, privileges and property belonging to the said South Carolina Canal and Railroad Company should be vested in the said South Carolina Railroad Company.” The Act last mentioned also declared, in effect, that. the charter of the South Carolina Railroad Company should not be subject to alteration, amendment or repeal by the General Assembly of this State.

The defendants became a body corporate under certain Acts of the General Assembly, passed respectively in the years 1858 and 1863. By the former Act, they were authorized to construct a railroad, on the most practicable route, from some point in or near the city of Columbia, in Richland District, to the Savannah river, at or near the town of Hamburg, in Edgefield District. By the Act of 1863, their corporate name was changed to that of the Columbia and Augusta Railroad Company, and they were empowered to construct a railroad from some point on the *342Charlotte and South Carolina railroad, in or near the city of Columbia, to or near the town of Hamburg, in the State of South Carolina. Large progress has been made by the defendants, in building the road authorized by the Act last mentioned, and the purpose of the bill is to enjoin them from further proceeding in the work of constructing it.

It is contended that the projected road of the defendants, if completed and in operation, would infringe the exclusive corporate privileges of the plaintiffs, and thereby impair the obligation of their contract with the State, as expressed in their charter. It is argued that the plaintiffs, for the prescribed term of thirty-six years, have undoubtedly the exclusive right to make, keep up and use a railway from Charleston to Hamburg, with a branch of the same to Columbia, and upon the faith that such exclusive right would be respected and upheld, have actually constructed such road and branch ; that it was physically impossible to construct them without connecting by railway Columbia and Hamburg, and that the Act of 1828 contains, therefore, an exclusive, express and positive authorization to make such connection. It is manifest that the Acts of 1827 and 1828 conferred upon the South Carolina Canal and Railroad Company no substantive or independent power to construct a railroad from Columbia to Hamburg. The formation of that company, as expressed by the former Act, was for the construction of a railroad or canal, or a railroad and canal *from*the city of Charleston, on the most practicable routes, to each of the towns of Columbia, Camden and Hamburg. The Act of 1828 empowered that company to establish railway communication between Charleston and the towns of Columbia and Camden, either by separate and independent roads, or by branches of the railroad to be constructed between Charleston and Hamburg'; but it effected no further change or modification of the Act of *3431827, as to the railroads between those places thereby authorized.

The grant of the exclusive privilege in question implies, of course, an inhibition of other railroads between the same points or places. But it is not left to implication to determine what roads are thus inhibited. To be informed on that point, we have but to refer to the plain and explicit words of the Acts of 1827 and 1828. In the sixth section of the former Act, it is declared that for the term of thirty-six years “no other persons or incorporations shall have the right of constructing any railroad or canal communication from the city of Charleston to either of the towns of Columbia, Camden or Hamburg.” Equally distinct and unequivocal will be found the provision of the first section of the Act of 1828, that, for the term of time thereinafter mentioned, “no other communication between Charleston and the Savannah river, at or near Hamburg, or the waters of the Savannah river, or the towns of Columbia and Camden, or to any points on the river, at or near the same, by other railroads or new constructed canals, shall be constructed, by or under the authority of this State.” It is difficult to perceive how the projected road of the defendants can .operate to the prejudice of the exclusive privilege belonging to the plaintiffs. The purpose of its grant to the South Carolina Canal and Railroad Company was undoubtedly to secure to them, for the prescribed period, the monopoly of all the profits to arise from transportation or travel by railway between the designated points in the interior and the great seaport of the State. But the proposed railroad between Columbia and Hamburg can, in no rational sense, be regarded as creating a railway communication from either of those points to the city of Charleston. On the contrary, the very ground of the plaintiffs’ complaint is, that its effect will be the very opposite: to divert and carry *344away at those points the trade and travel that would otherwise go to the city of Charleston.

The projected road of the defendants is clearly not within the terms of the inhibition contained in either of the Acts referred to. "When those Acts conferred on the South Carolina Canal and Eailroad Company the right to construct a railroad from Charleston to Hamburg, with a branch of that road to Columbia, they undoubtedly also conferred the right to establish a railway communication between Columbia and Hamburg. Such communication was in- , separably incident to the conjunction of such road and branch —was, in truth, its necessary consequence and result. But, obviously, that communication could be accomplished lawfully only in the mode and by the means prescribed by such road and branch alone as the South Carolina Canal and Eailroad Company were authorized to construct, and certainly not by another and independent road wholly unauthorized by their charter. Undoubtedly the inhibition of other roads, pronounced by the Acts of 1827 and 1828, is confined to such railways only as the South Carolina Canal and Eailroad Company might have constructed by virtue of those Acts. But, as already shown, a railroad directly from Columbia to Hamburg is not authorized by the Acts referred to. Whether, therefore; the exclusive privilege conferred, or the inhibition imposed by the Acts in question, be considered, the result is the same; that the corporate rights of the plaintiffs, as derived from the charter of the South Carolina Canal and Eailroad Company, will not be invaded by the projected road of the defendants.

By the 18th section of the Act to incorporate the Cincinnati and Charleston Eailroad Company, it is provided that the State of South Carolina shall not, for thirty-six years from 1st January, 1836, “authorize the construction of any railroad within twenty miles of the railroad to be constructed by that company, which shall connect any points *345or places on their railroad, or which shall run in the general direction thereof, without the consent of the said company.” The 19th section of the same Act provides that the said company may construct branches of their road, but that such branches shall be attended with no exclusive privileges except that of transporting thereon goods, produce and persons. It'is urged that, in 1842, the project of the Louisville and Cincinnati railroad was finally abandoned; that the Act of 1848, by vesting in the plaintiffs all the rights, privileges and property belonging to the South Carolina Canal and Railroad Company, extended the charter of the Louisville, Cincinnati and Charleston Railroad Company over *all*the road possessed by the plaintiffs — that is, over the Charleston and Hamburg track, and the Branch-ville track; that the plaintiffs are thereby invested, in respect of both and each of those tracks, with the exclusive privilege conferred by the 18th section of the Act of 1835, already referred to, and that such privilege must of necessity be infringed, if the defendants be permitted to construct their projected road, connecting important places on the railroad of the plaintiffs.

The Cincinnati and Charleston Railroad Company was incorporated for the purpose of establishing by railroad a communication between the cities of Cincinnati, in the State of Ohio, and Charleston, in the State of South Carolina. The charter of the company is in perpetuity, and it is invested with the amplest powers at any time to increase its capital to a sum sufficient to complete the projected road and its branches, and stock it with every thing necessary to give it full operation and effect, either by opening books for new stock, or by borrowing money on the credit of the company and on mortgage of the charter and works. General commercial embarrassment, and the withdrawal of their subscriptions by the stockholders not resident within the State, disabled the company then bearing the name of the *346Louisville, Cincinnati and Charleston Railroad Company, from extending the road from Branchville, as they had proposed, beyond Columbia towards Butt Mountain Gap. But there was nothing, save the lack of capital, to debar the plaintiffs, who had succeeded to all the chartered rights of the Louisville, Cincinnati and Charleston Railroad Company, from resuming that work immediately after the passage of the Act of 1843, had they chosen to do so. If, in the course of the succeeding year, the plaintiffs had resumed the work of construction, and within a reasonable time had extended their road from Columbia to the mountains, could there have been a moment’s doubt as to the construction of the 18th section of the Act of 1835 ? Is it not palpable that the exclusive privilege which that section confers would, in that event, have been restricted to the road of the plaintiffs, exclusive of the road from Branchville to Hamburg ? The section in question can mean, *now,*nothing else than it meant immediately after the ratification of the Act of 1843.

The effect of sections 18 and 19 of the Act of 1835 is, undoubtedly, to confine the exclusive privilege which it confers to the main trunk of the road which it authorized to be built. The road from Charleston to Augusta communicates, through the railroads in Georgia, with Knoxville, in Tennessee, and other points in the direction of Kentucky. But it cannot be said that that road has thereby now become the *main*trunk of the road authorized by the Act of 1835. It is directed by that Act that such road should “pass through the States of Kentucky, Tennessee, North Carolina and South Carolina, so as to form a continuous line of railway between the cities of Charleston and Cincinnati.” Georgia is not among the States that may be traversed by the projected road. If the road from Charleston to Augusta has become the main trunk, then the road from Branch-ville to Columbia is undoubtedly a branch of the road contemplated by the Act of 1835. But if this be so, then the *347defendants’ charter is no infringement on the exclusive privilege in question, since it will then result, that one of the places to be connected by the defendants’ projected road is not upon the main trunk of the plaintiffs’ road.

It is indisputable that the exclusive privilege in question operated, in respect to the Charleston and Hamburg road, when purchased by the Louisville, Cincinnati and Charleston Railroad Company, precisely as it would have done in regard to that road had it been built entirely by that company under its charter. In the address of the president of that company to the stockholders, soon after the purchase had been effected, it is said, in reference to it: “Running for sixty or seventy miles from Charleston in the general direction of our *main*road towards the mountains, we have so much.of that road already made to our hands.” In the first annual report of the president and directors of that company^ and prior to their purchase of the Charleston and Hamburg road, but in contemplation of it, the projected road from Branchville is spoken of as destined to become, in that event, “our *main trunk,*leading by Columbia through the centre of South Carolina, and to be extended to the Western States through the valley of the French Broad.” In their two succeeding annual reports, and after the location of the proposed road from Branchville to Columbia, it is again and again referred to as “ our main trunk,” and as “ the first link in the main trunk of our road.” Had the projected road from Charleston to Cincinnati been completed, the exclusive privilege referred to would have been confined to its main trunk extending from Charleston to Branchville and thence by Columbia to its western terminus. But the road has not been completed. Surely, no more in reason can be demanded, in right of that company, than that the privilege in question should be held not to have been withdrawn in respect of so much of the main trunk of their road as has been actually established by *348them. It is easy to apprehend that their failure .to build the projected road may have diminished their chartered privileges, but how it could have enlarged them, is wholly unintelligible.

The Act of 1843 changed the name of the Louisville, Cincinnati and Charleston Railroad Company to the South Carolina Railroad Company, and under its provisions the South Carolina Canal and Railroad Company became merged, and all its rights, privileges and property vested in the South Carolina Railroad Company. But the Act assuredly in nowise affected the rights or privileges of the plaintiffs under the charter to the Louisville, Cincinnati and Charleston Railroad Company, except by adding to them those of the South Carolina Canal and Railroad Company. Undoubtedly, the operation of the Act was to extend the charter of the Louisville, Cincinnati and Charleston Railroad Company over all the road possessed by the plaintiffs ; that is, to extend it in the same sense, and with the same effect, as that charter would have been extended by its own operation over the road, had it been entirely constructed, instead of being purchased, by that company. All the rights and immunities conferred by that charter subsist unchanged, whether they refer to the trunk or the branch of the road. There is no displacement, diminution or enlargement of the one by the other. With what show of reason can it be said, that such interpretation repeals the 18th section of that charter ? The Act of 1843, thus interpreted, retains and enforces that section to its fullest extent. It is the construction proposed by the plaintiffs which discards it and substitutes in effect' another and distinct provision, by which a privilege restricted in terms to the main trunk of the road is extended to its branches also. Nothing can be found in- the Act of 1843 which in the slightest degree suggests that co-equal and uniform privileges were designed to be conferred in respect to each and *349every portion of the road, the branches as well as the trunk. The 19th section of the Act of 1885 materially qualifies the section immediately preceding it, the 18th. The argument on behalf of the plaintiffs may be most fairly and justly retorted. “What warrant is there for saying, that one section of that charter is repealed or modified ? That the Legislature, extending the charter over all the road and property of the South Carolina Railroad Company, excepted the 19th section ?’*

Much argument was directed-to the inquiry whether the charter under which the plaintiffs claim should be construed strictly against them, or fairly and liberally in their favor. The decisions of the English Courts, in regard to railway Acts, seem to establish the rule that their language is to be treated as the language of the promoters of them; that any ambiguity in the terms of the contract must operate against the grantees and in favor of the public; the former being entitled to claim nothing which is not clearly given to them. Broom’s Maxs. 465, 466, and cases cited. In the' American decisions, the great preponderance of authority is in favor of the same rule of construction. It is admitted to be so by Chancellor Kent, and this after having laid down the opposite doctrine in the text of his commentaries. *Charles River Bridge*vs. *Warren Bridge,*11 Pet. 420; 3 Kent, 495, notes (a) and 1. But it is not deemed necessary to consider when and under what conditions the rule in question may be resorted to. The construction which has been placed upon the Acts of the General Assembly commented on, is regarded as amply vindicated by the plain purport of the terms in which such Acts have been expressed.

It was made a prominent point in the argument, whether the portion of the plaintiffs’ road from Branchville to Columbia was built under the charter of. the South Carolina Canal and Railroad Company, or under that of the Louis-*350yille, Cincinnati and Charleston Railroad Company. The point is not deemed material, bnt, in deference to the argument submitted, will be briefly considered. That the road in question was constructed solely under the charter to the Louisville, Cincinnati and Charleston Railroad Company is apparent from the reports of the president and directors, and the proceedings of the stockholders of that company. If additional proof is requisite, it will be found in their action in the immediate and direct construction of that road. In the case of the *Louisville, Cincinnati and Charleston Railroad Company*vs. Chappell, Rice, 383, it will be seen, that the company requiring certain lands for the track of the road from Branchville to Columbia, affirmed in that proceeding that they were entitled to take them because necessary to the road authorized by their charter as contained in the Act of 1835. They claimed the right to take these lands for *such*road, and no other. Their authority thus to appropriate them they referred to that charter, and to no other, and the prominent and leading question there considered and adjudged was the constitutionality of the 35th section of the Act last mentioned — the Act of 1835. The 6th section of the Act of 1827, incorporating the South Carolina Canal and Railroad Company, provided that, for the term prescribed, *“*no other person or incorporation shall have the right of constructing any railway communication from Charleston to Columbia *without the consent*of this company.” That this exclusive privilege was inserted into their charter solely in favor of the South Carolina Canal and Railroad Company cannot be doubted, and it is quite as clear, upon general principles of law, and without reference to the special terms of the Act of 1827, that it was competent for that company to waive or renounce (as they certainly did, upon sufficient consideration) the benefit of that privilege in favor of another and like corporation, *351created by the same legislative authority. Broom’s Mass. 574. '

Whether, assuming the plaintiffs to have been originally entitled to the exclusive right to establish and maintain railway communication directly between Columbia and Hamburg, such right has been lost by *non user,*needs not to be considered, nor yet the question discussed at the hearing, whether the plaintiffs are entitled to the exclusive privileges mentioned in the 18th section of the Act of 1835, they having completed but an inconsiderable part of the great work contemplated by that Act. These questions are not here considered, as the judgment of the Court rests entirely upon other grounds. The claim of the plaintiffs to the aid of the Court is placed upon yet another basis. Their road from Charleston passed to within a mile of Grraniteville, and thence along the valley of Horse Creek to Hamburg. The line fixed by the defendants for their projected road passes likewise by Grraniteville, and thence also along the same valley to Hamburg, parallel to the road of the plaintiffs, and in close proximity to it. It is contended, on behalf of the plaintiffs, that their exclusive privilege to establish and maintain railway communication between Charleston and Hamburg attaches to every foot of their road connecting those places, and that the construction of another road, side by side and parallel with their road from Grran-iteville to Hamburg, a distance of ten or twelve miles, cannot operate otherwise than as a palpable invasion of such exclusive privilege; that other routes than the one selected may be found by the defendants for their projected road, and that its location, as proposed by them, from Grraniteville to Hamburg, is, therefore, unauthorized by their charter. A glance at the map will show that Grraniteville is very nearly, if not altogether, in a direct course from Columbia to Hamburg. From Grraniteville to Hamburg, it is conceded that the only practicable route for a railway is that *352by the valley of Horse Creek. Other routes for their road than that by Graniteville may be found,, but they "are attended with natural obstacles too formidable to be overcome, save by an outlay of capital wholly beyond the means and resources of the defendants. To deny them access to Hamburg by Graniteville, and the valley of Horse Creek, is to disable them utterly from- completing their projected road. That route is therefore the only practicable route that remains to the defendants. Are they entitled to pursue it ?

In proposing to adopt that route, it has not been shown that the defendants are acting otherwise than in good faith, and because they, in truth, regard that route as the most desirable and the best. Had the plaintiffs built their road in a direct course from Charleston to Hamburg, the coincidence in the tracks of the two roads from Graniteville to Hamburg could not have occurred. In carrying their road to Graniteville, or rather its immediate vicinity, the plaintiffs diverge considerably from the direct line between Charleston and Hamburg. The coincidence referred to between the respective roads of the parties from Granite-ville to Hamburg is the result of that very divergence. When, at the date of its charter to the plaintiffs, the State reserved the right to authorize the construction of a railroad from Columbia to Hamburg, was there not involved, in such reservation, the right to authorize such road by at least the straight and direct course between those places ? The plaintiffs’ road from Hamburg to Graniteville, though pursuing, for some ten or twelve miles, a course almost, if not altogether, in the direct line to Columbia, was built assuredly under the powers conferred by their charter, and certainly not in derogation of any power retained by the General Assembly to authorize other like improvements. If so, then such location of the plaintiffs’ road must be held to be in subordination to such reserved power, although, in *353its exercise, the result should he a railway from Columbia, passing by Grraniteville, and thence to Hamburg, with a concurrent track along the same route, and involving for that distance an incidental competition between the two roads. As already remarked, the plaintiffs’ exclusive privilege is restricted to railway communication between the points indicated in their charter, and the city of Charleston. But the projected road of the defendants constitutes, in no sense, and neither in whole nor in part, a railway communication with Charleston. How can blame be imputed to the defendants for proceeding with their road from Hamburg to Grraniteville, when, in so doing, they are pursuing, with slight deviations, the direct course to Columbia, and are confining themselves, so far as the route of their road is concerned, within the strictest limits of their charter ?

It may safely be concluded, with regard to each and all of the grounds considered, that it is, to say the least, extremely doubtful whether the construction by the defendants of their proposed road will, to any extent, infringe the exclusive privileges of the plaintiffs under their charter, and, more than that, it is apprehended, needs not to be adjudged in this proceeding. Infringements of corporate franchises or statutory privileges, by Acts which are in the nature of a nuisance, or which occasion a constantly recurring grievance, may undoubtedly be prevented by injunction from this Court. In such case, the ground upon which the Court interposes is the protection of the legal titles. *Gory*vs. *Y. & N. Railway Go.,*3 Hare, 600; *Wilkins*vs. *Aiken,*17 Yesey, *4:24:.*“ When any doubt exists,” says Lord Oottenham, “ as to the rights of the parties, if the Court were to exercise jurisdiction without giving an opportunity of a trial at law, there would be different law in this Court and in the Court of Law upon the subject.” *Brambwell*vs. Holcomb, 3 My. & Cr. 739. *“*Courts of Equity,” it is said, *“*will grant an injunction to restrain a public nuisance only in cases where *354the fact is clearly made out upon determinate and satisfactory evidence.” “The same doctrine,” it is added, “is equally applicable to cases of private nuisance.” 2 Story Eq. § 924 A; *Q-ervais*vs. Council, 11 Rich. Eq. 440. Great latitude and discretion are allowed to the Court in dealing with an application for injunction, whether made during the progress of the suit or at the hearing. In *Bacon*vs. *Jones,*4 Myl. & Or. 438, the Lord Chancellor remarks: “ Generally speaking, a plaintiff who brings his cause to a hearing is expected to bring it on in such a state as will enable the Court to adjudicate upon it, and not in a state in which the only course open is to suspend any adjudication until the party has had an opportunity of establishing his title by proceedings before another tribunal. I think,” he continues, “that the Court would take a very improper course, if it were to listen to a plaintiff who comes forward at the hearing, and asks to have his title put in a train for investigation, without stating any satisfactory reason why he did not make the application at an earlier stage.” What is said, in the case last cited, is deemed entirely applicable to the case in hand. It is true, that the plaintiffs could not have brought suit at law against the defendants for merely apprehended infringement of their charter privileges, but, upon applying to this Court, an issue might have been ordered for trial of the legal right. It is said, that, when'the Court plainly perceives what the issues are between the parties, in regard to such rights, it may, upon an interlocutory application, direct their trial at law, and that this may be done even before the coming in of the answer. *Cory*vs. *Y. & N. B. jE. Co.,*3 Hare, 607. Certainly, the cause might be retained until a trial had at law, and the Court, perhaps, might have been not disinclined to such course, but for other and more formidable objections to its interposition, which yet remain to be considered.

It has been already stated that the defendants were au-*355tborized to construct their proposed road by Acts of the General Assembly passed in 1858 and 1863. The line along which the defendants are now building their road was surveyed by their Chief Engineer in 1863. The work of excavating and embanking was begun late in 1863, or early in 1864. Subscriptions to tbe capital stock of the company have been -made by the towns of Columbia and Augusta. As late as December last, the General Assembly authorized a subscription, on behalf of the State, for $42,200 of its stock, and, also, the indorsement of the State’s guarantee upon its bonds to an amount approximating a half million of dollars. It is in proof, that the defendants have “already expended at least $300,000 in constructing their road; have entered into contracts and engagements for as mi^ch more;” “and that the work of building their road is now at least four-fifths finished, if not more.” Until very recently, the plaintiffs have been passive, silent, and seemingly acquiescent, permitting the defendants to proceed with their work, and to expend moneys and contract engagements, to the very large amounts mentioned, without opposition, remonstrance or dissent of any kind.

The entire absence of opposition or objection, on their part, becomes the more significant when reference is had to certain proposals made to them by the defendants, some twelve months before this suit was instituted. In April, 1866, or perhaps earlier, the defendants 'proposed to the plaintiffs, upon certain terms, a connection between their respective roads from Graniteville to Augusta, by the defendants being permitted by the plaintiffs to use their right of way, or else their road, as a common track between those points. Although the matter of the construction of their road was thus directly brought by the defendants to the attention of the plaintiffs, yet nothing upon that occasion was even intimated by the plaintiffs, importing denial or *356doubt of the defendants’ right to build their proposed road *;*on the contrary, the officers of the latter were left under the impression that the proposal submitted was entertained and held under consideration by the plaintiffs. Until March last, the defendants were not apprised that the plaintiffs questioned their right to build their projected road, and designed to resist its completion, and* it was not until the 15th April, 1867, that the plaintiffs instituted these proceedings.

Under such circumstances,, and at this late hour, the plaintiffs exhibited their bill for the protection of certain exclusive privileges to which they lay claim. Of these, the most important is that derived from the charter of the South Carolina Canal and Railroad Company — a privilege which fast hastens to extinction, which can endure but for a few months after the- completion of the defendants’ road, and which, from its transitory nature, suggests the doubt whether its infringements should not be ranked among injuries fugitive and temporary in character, and not remediable by the process of injunction. “If there be any thing,” says Lord Brougham, “ well established in this Court, it is, that a man who lies by while he sees another person expend his capital and bestow his labor upon any work, without giving to that person notice, or attempting to interrupt him — one who thus acquiesces in proceedings inconsistent with his own claims — when'he comes to enforce those claims in this Court, Shall in vain ask for its interposition by an injunction, of which the effect would be to render all the expenses useless which he voluntarily suffered to be incurred.” *Parrott*vs. *Palmer, 3*Myl. & K. 640. *“*This Court,” says Lord Eldon, “ will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title ; and the circumstance of looking on is, in many cases, as strong as using terms of encouragement.” *Dann*vs. *Sjpurrin, 1*Yes. *357236. One of the eases usually mentioned as coming within the operation of this principle is, when the owner of land stands by, and allows an innocent purchaser to build upon it, without giving notice of his title. It may be said, and with scarcely a figure of speech, that the defendants have, for years, been *building*upon a franchise which they, in good faith, supposed to be theirs, while the plaintiffs looked on passively, and without objection, until the work approaches completion, when, for the first time, they set up and assert a hostile right, which, if admitted, will render all the labors and capital expended by the defendants, for a season, at least, utterly useless to them.

The principle referred to has been distinctly recognized in regard to buildings or works alleged to be nuisances to the privileges or property of others. In *Williams*vs. *Bari of Jersey,*1 Cr. & Phil. 97, Lord Cottenham cites with approval the case of *Jones*vs. *The Boyal Canal Company,*2 Molloy, 319, in which it was held, that it was the duty of a party, seeing a nuisance in progress, to give notice to the party creating the nuisance of his intention to object.

Appeals to the preventive jurisdiction of the Court are required to be made promptly and without unnecessary delay. In *Birmingham Canal Company*vs. *Lloyd,*18 Yes. 516, the motion was for an injunction to restrain the defendants, proprietors of adjacent coal mines, from drawing the waters from certain reservoirs used by the plaintiffs for supplying their canal. The defendants having given the plaintiffs notice of their intention to draw off the water, preparatory to working their mines, a counter notice was given by the plaintiffs that they would sue the defendants at law for damages, if they should proceed. Application for the injunction was not made until nearly two years after the notice to the plaintiffs, and in the meantime the defendants had incurred certain expenses for fire-engines and other preparations for working their mines. In pronouncing his *358decree, Lord Eldon remarks : “ The plaintiffs must establish their right to damages at law before I ought to grant this injunction. I proceed here upon the circumstances of delay.” Referring to the notice given to the plaintiffs, he continues: “ The company having given a counter notice, that they would in that case seek damages at law, and haying a right to apply promptly to this Court to prevent the act, instead of taking that course, permit the defendants to expend ¿62,000 in proceeding towards getting coal, by erecting fire-engines, &c., and when they are about to get the coal, the plaintiffs come for an injunction. They ought to have commenced their opposition when they could have done so with justice, and this Court ought not to interfere.” The plaintiffs, in the case last cited, held a far stronger position than they do in this. *There,*the delay of the plaintiffs was far less than it is *here,*and the sum laid out by the defendants *there*is but an inconsiderable fraction of the amount expended by them *here.*In that case, the plaintiffs were neither mute, nor, by implication, assenting to what was proposed by the defendants, but, on the contrary, they proclaimed at once, and in advance of the defendants’ operations, their adverse right, and their intention to assert it by suit at law. In this case, in regard to the projected road of the defendants, nothing for years appears, on the part of the plaintiffs, but silence and seeming acquiescence, from which they did not depart, even when the proposition was submitted for a junction of the two roads, or the use in common of their right of way, from Granite-ville to Hamburg.

In the *Earl of Ripon*vs. *Hobart,*3 Myl. & K. 178, Lord Brougham rests his decision, in one aspect of the case, upon the circumstances that the application was not brought before him until after much progress had been made in the works sought to be enjoined, and considerable sums of money expended- upon them, independently of contracts *359entered into. Although the plaintiffs seem to have given prompt notice of their intention to oppose, by legal proceedings, the works in question, and though there was a delay of but nine months, in applying for the injunction, yet the motion was refused. Referring to the case of the *Birmingham Canal Company*vs. *Lloyd,*Lord Brougham observes: *“*The danger apprehended in that ease was. one of a very serious nature, yet Lord Eldon refused the injunction, leaving the company, as he said, to take their chances at law, because they had delayed coming to Court till two years after notice from the defendants. Here, indeed, the delay was only nine months, but there was a counter notice in that case, as well as in this, and it made no difference in the consideration of the Court as to the party’s laches.”

Though a party seeking an injunction has promptly instituted for that purpose a proceeding in this Court, yet if he be dilatory in pursuing it, the Court will not interfere. In the case of *Bacon*vs. *Jones,*already cited, the object of the bill was to restrain an alleged infringement of the plaintiffs’ patent. "The plaintiffs,” said the Lord Chancellor, *“*might have brought their action before filing the bill, or they might, after the bill was on file, have had their right put in a train for trial. Instead of that, they have allowed the suit to remain perfectly useless to them for the last four years.” The decree of the Master of the Rolls, dismissing the bill, was affirmed. In accordance with the authorities referred to, will be found numerous decisions cited in 2 Redfield’s Law of Railways, § 220 and note 1.

Having due regard to the doubtful character of the legal rights asserted by the plaintiffs, to their great delay in resorting to this jurisdiction, to their long-continued acquiescence in the building of the defendants’ road, to the large sums which have been either actually expended or for which engagements have been contracted in its construe*360tion, and to the disastrous consequences to the defendants which must result should they be enjoined from its completion, the Court conceives that there remains but one course to be pursued. The preventive relief which is sought by the plaintiffs must be denied, and their bill be dismissed, and it is accordingly so ordered and decreed.

The complainants appealed from the decree, on the grounds

1. That, under the Acts constituting the charter of the South Carolina Railroad Company, there is granted to said company, by the State, the exclusive right to make, keep up and employ railway communication, and intercourse by railway, for thirty-six years, between the towns of Columbia and Hamburg.

2. That the Acts of the General Assembly of the State, authorizing the Columbia and Augusta Railroad Company to construct a railway between Hamburg and Columbia, destroy the exclusive privileges previously granted to the South Carolina Railroad Company, establish a competing road, and impair the obligation of the contract made and existing between the State and the South Carolina Railroad Company, and that his Honor, the Chancellor, should have so decreed.

3. That the said Acts of the General Assembly are in violation of the Constitution of the State, (article ix.,) and of the United States, (article 1, section x.,) and are void, and all the acts and deeds of the defendants thereunder are illegal and void, and his Honor, the Chancellor, should have so decreed.

*é.*That no authority is given by the General Assembly of the State, to the Columbia and Augusta Railroad Company, to construct their track across the track of the South *361Carolina Eailroad Company, near Columbia, and that tbe action of tbe defendants in entering upon the land and property of the complainants, and in constructing their track across the track of the complainants, was illegal, and his Honor should have so decreed.

5. That even if defendants have the right to construct their track across the track of the complainants, such, right should be so limited in its exercise as not to prejudice the rights of the complainants, and that to secure to complainants the uninterrupted use of their own property and corporate privileges the defendants should have been enjoined from crossing on the same level, and compelled to’ cross above or beneath the track of the complainants.

6. That there is vested in the South Carolina Eailroad Company, by Acts of the General Assembly of the State, the exclusive right to make, keep up and employ a railway between Charleston and Hamburg, and that the construction by the defendants of a railway parallel to, and competing with the railway of the complainants, from Granite-ville to Hamburg, is unauthorized by the charter of the Columbia and Augusta Eailroad Company — is in derogation of the exclusive privileges vested in the -South Carolina Eailroad Company by their charter, and illegal, and his Honor, the Chancellor, should have so decreed, and en-joined the defendants.

7. That any Act of the Legislature, directly or indirectly, authorizing the defendants to construct a railway from Graniteville to Hamburg, or to connect Graniteville and Hamburg by a railway, impairs the obligation of the contract made and existing between the State and complainants, and is in violation of the Constitution of the State and of the United States, and is void.

*3628. That the failure of the complainants to assert their rights of property cannot divest them of those rights, unless such time has elapsed as will constitute a legal har tb the prosecution of their action, and that no such lapse of time has ocourred in this case as will constitute either a legal or equitable bar to the assertion of their rights by the complainants.

9. That if the defendants have not the right under their charter to construct the road projected by them, they cannot derive such rights from the implied acquiescence of the complainants; that the assent of the complainants to the action of the defendants never was given, and cannot be implied.

10. That, upon the law and the facts of the case, the complainants are entitled to the relief prayed for in their bill, and that his Honor, the Chancellor, should have so decreed.

*Conner,*for appellants.

*Arthur, Melton,*contra.

Per Curiam, Dunkin, Ch. J., Wardlaw, A. J., and Glover, J.,

concurring. It has come to the knowledge of this Court that, after the cause was heard and the motion for injunction *pendente lite*refused, the Columbia and Augusta Railroad Company, the defendants in this case, with previous notice of their intention given to the plaintiffs, the South Carolina Railroad Company, but without the consent of the plaintiffs and against their active resistance, effected a crossing of the South Carolina railroad about a mile from the depot of the plaintiffs in Columbia, and that that crossing has since been used by the defendants for *363transportation required in the construction of their road, and is essential to the successful progress of that construction. The Court is aware of the dangers which attend the ■crossing of one railroad by another, and feels bound, as far as it properly can, to guard against them. Whilst therefore it recognizes the abstract right of the defendants to cross, and affirms the decree of the Chancellor upon the questions considered by him, it will retain the bill and endeavor under it to fix the relative rights and duties of the parties in respect to the crossing, and also to settle all points of dispute between the parties connected with the main subjects, which have been brought under adjudication.

It is therefore ordered that, until a contrary order be made, the defendants shall be permitted to keep in good repair the crossing effected by them as aforesaid, and to use it with extraordinary care in subordination to the rights of the plaintiffs, in the proper enjoyment of their road and right of way, with due regard to the schedules of the plaintiffs and with responsibility for all damages that may come, directly or indirectly, from any misconduct or negligence of the defendants, their agents or employees, in regard to the said crossing.

It is further ordered, that it be referred to the Commissioner for Richland District, to inquire and report a permanent scheme for the crossing by the defendants, and at . their cost, of the railroad of plaintiffs, at the place where the crossing has been effected, as aforesaid; which report shall show how, under what plan, with what contrivances and according to whose judgment, it shall be arranged, under whose superintendence it shall continue, what regulations concerning it and its use shall be prescribed for the conduct of the parties respectively, with a view as well to the public interests as to the rights of the two parties; and what in respect to these particulars is the agreement of the *364parties, or, if there be no agreement between them, their ■ several propositions.

It is further ordered, that the said Commissioner do inquire and report what compensation, if any, shall be assessed in favor of the plaintiffs against the defendants, because of the crossing, temporary and permanent, above mentioned.

Moses and Dawkins, J. J.

We concur in the opinion of the Court and orders, except as to so much thereof as refers to the rights of defendants to construct their road from Graniteville to Hamburg. On that question we express no opinion, for reasons affecting us, not necessary to be here stated.

Lesesne, Ch.

I concur in the opinion of the Court and orders, except as to the right of defendants to connect Hamburg, and Graniteville by their railroad. I do not think they have that right.

Inglis, A. J., dissenting.

Being of opinion that the Columbia and Augusta Railroad Company has the right, under its charter, in the construction of the road thereby authorized, to cross the track of the South - Carolina Railroad Company; that the' exercise of this right has been by the General Assembly subjected to no other than the single condition, necessarily implied, that the South Carolina Railroad Company shall not therein be disturbed, in the free and unobstructed use and enjoyment of its own road for the legitimate purposes of the business contemplated by its charter;' that this Court has no authority to impose upon the exercise of the right, terms and conditions, from which the General Assembly has left it exempt; that the case made by the pleadings and evidence in the Court below not only does not show any attempt or purpose of ■the defendant company to exercise this right in any other than a lawful manner, but does show the contrary, and that, *365if, for such use of the plaintiff company’s track and roadbed, as is necessary in effecting the crossing, and thereafter enjoying it for the defendant company’s legitimate purposes, or for any other, cause, any compensation is due, it can be obtained only in tbe mode prescribed in the defendants charter, I am compelled to dissent from so much of the judgment of'the Court as directs inquiry by the Master, with a view to such additional terms and conditions, and to a determination of the right and measure of compensation. I agree entirely with the Chancellor who heard the cause below, in his judgment touching those rights of the parties, plaintiff and defendant, which are necessarily involved in this controversy, under their respective charters, and concur in the judgment of this Court in so far as it affirms his decree in this behalf.

'Munro, J., and Carroll and Johnson, C. C., concurred with Inglis, A. J.

*Decree affirmed.*