a contract conformable to the terms of the Acts was created between the corporation and the Commonwealth.

This contract was performed on the part of the corporation, by the erection of the works required, being works of great magnitude and expense, and of great public convenience and utility; and thereby the corporation became entitled to the exclusive right and privilege of forever using the soil included within the limits of the full basin, for the purpose of keeping it covered with water to the height and extent of surface to which the tide naturally flowed it, and the exclusive right and privilege of forever keeping the soil included within the limits of the receiving basin uncovered by the tide-waters, and using it for a reservoir to receive and carry off the waters flowing from the full basin through the raceways cut, or which should thereafter be cut, through the cross dam, and the exclusive right and privilege of cutting raceways through any part of the cross dam, and of using or disposing, by lease or otherwise, of the water-power thereby created.

The plaintiffs were incorporated by the name of the Boston Water Power Company, on June 12th, 1824 (St. 1824, c. 26), with power to purchase and hold any quantity of the water-power created by the establishment of the dams above mentioned, and by an indenture, dated May 9th, 1832, the Boston and Roxbury Mill Corporation transferred to them, for the sum of 175,000 dollars, all the grantors' right to the land above the main dam, and all the water-power, and all their privileges, contracts, duties, and obligations respecting the waterpower; and the plaintiffs thereby, so far as regards the water-power, became entitled to the exclusive right and privilege of forever using the soil included within the two basins, for the purposes before mentioned, and to all the water-power which can be and is created by the constructing and maintaining of the dams, without any hindrance, obstruction, interruption, or diminution of the capacity of the basins respectively.

The plaintiffs allege, that the Boston and Worcester Railroad Corporation deny and disregard these vested rights, and threaten to build a railroad through the full basin, and over the cross dam, and through the receiving basin; and have actually commenced building the same, by driving piles in both of the basins; and have taken for their road a strip of land twenty-six feet wide through the full basin, and five rods. wide through the receiving basin.

The construction of the railroad through and across the two basins and cross dam will, it is alleged, greatly diminish the water-power, and abridge the franchise vested in the plaintiffs, of using the soil and space between the main dam and Boston Neck for their basins, to their irreparable injury, and, so far as their rights are concerned, will be a

nuisance.

The bill concludes with a prayer for a perpetual injunction and other relief. . . . [The rest of the statement of facts is a recital of the defendants' answer, the substance of which sufficiently appears from the opinion.]

C. G. Loring (with whom were J. Mason and Gardiner), for the plaintiffs.

Aylwin, and F. Dexter, for the defendants.

SHAW, C. J., delivered the opinion of the court. . . . For the purposes of this hearing it is admitted, by the defendants, that the piers, embankments, and bridges erected by them in the construction of the Boston and Worcester Railroad in and over the full and receiving basins claimed by the plaintiffs, do, to a certain extent, diminish the volume of water which those basins would otherwise contain, and do therefore to some extent impair and diminish the water-power to be derived therefrom. But they insist that this is damnum absque injuria, that they are legally justified in so laying out the railroad over the basins, that the damage thereby suffered by the plaintiffs is not in consequence of a tort done by the defendants, to be deemed in law or equity a nuisance, or abated as such, but an act done by rightful authority, for which the remedy is by a compensation in damages, to be obtained in the manner provided by law. This, at present, constitutes the question between the parties. This is a question involving public and private interests of very great magnitude, and requiring the most mature consideration. In deciding it, the court have the satisfaction of feeling that they have derived great benefit from a full, able, and ingenious argument, which seems quite to have exhausted the subject.

The first question which we propose to consider is, whether they legislature had the legal and constitutional authority to grant to the corporation created for the purpose of establishing a railroad from Boston to Worcester, the power to lay their road over and across the basins of the plaintiffs, on paying them the damage sustained thereby, and to keep up and maintain the same.

It is contended on the part of the plaintiffs, and this constitutes one of the main grounds of their complaint, that the legislature had no such authority, because they hold a franchise in and over all the lands, flats and waters included in their full and receiving basins, obtained by a grant from the Commonwealth for a valuable consideration, and that the authority contended for by the defendants would constitute an interference with and an encroachment upon their franchise, amounting in substance and effect, to revocation or destruction of the franchise, and a withdrawal of the beneficial uses of the grant. In order to judge of this, it is necessary to consider the nature and origin of the plaintiffs' rights as claimed and set forth by them, and the manner in which they are affected by the acts of the defendants, supposing them warranted by the Act of the Legislature.

We do not now stop to inquire into the objections taken by the defendants, that the plaintiff's have not complied with the conditions of the grants made to them, by the Act incorporating the Boston and Roxbury Mill Corporation, and the several subsequent Acts; that is a subject of separate and distinct consideration. Supposing them to

have complied with those conditions, what are the rights claimed by them? The plaintiffs were authorized to enclose and pen up a portion of the navigable waters adjoining Boston, so as to prevent the ebb and flow of the tide therein, and to discontinue any further use thereof by the public for purposes of navigation, to make use of part of the public domain, being all that part of the land covered by water lying below low-water mark, or more than one hundred rods from high-water mark, and to acquire by purchase or by appraisement, without the consent of the owners, that part of the soil belonging to individuals, and to have the perpetual use thereof for mill purposes, and to make a highway on their dams and take toll thereon. Other rights, no doubt, were incident, but this is a summary of their important rights and privileges.

The effect of the authority granted to the railroad corporation to lay their road over these basins, was to some extent to diminish their surface, and reduce their value. But the court are of opinion, that this could in no proper legal sense be considered as annulling or destroying their franchise. They could both stand together. The substance of the plaintiffs' franchise was to be a corporation, to establish a highway and take toll, to establish mills, and to make use of land for mill ponds, derived partly from the public and partly from individuals, either by purchase or by taking it, for public use, at an appraisement, by authority of the legislature. So far as this gave them a right to the use of land, it constituted an interest and qualified property in the land, not larger or more ample, or of any different nature, from a grant of land in fee, and did not necessarily withdraw it from a liability to which all the lands of the Commonwealth are subject, to be taken for public use, at an equivalent, when in the opinion of the legislature, the public exigency, or as it is expressed in case of highways, when public convenience and necessity may require it. The plaintiffs still retain their franchise, they still retain all their rights derived from the legislative grants, and the only effect of the subsequent Acts is to appropriate, to another and distinct public use, a portion of the land over which their franchise was to be used. We cannot perceive how it differs from the case of a turnpike or canal. Suppose a broad canal extends across a large part of the State. The proprietors have a franchise similar to that of the plaintiffs, to use the soil in which the bed of the canal is formed, and it is, in the same manner, derived by a grant from the legislature. It is a franchise. But if afterwards it becomes necessary to lay a turnpike, or a public highway across it, would this be a disturbance or revocation of the franchise and inconsistent with the power of the legislature in exercising the right of eminent domain, for the public benefit? It might occasion some damage; but that would be a damage to property, and pursuant to the bill of rights, must be compensated for by a fair equiva lent. It may be said, that the way might be carried high over the canal, and so not obstruct it. But suppose a railroad, a new erection,

not contemplated when the canal was granted, and from the nature of which, it must be kept on a level, so as to subject the canal proprietors to considerable expense and trouble; whatever other objections might be made to it, it seems to us, that it could not be considered as a revocation, still less an annihilation of the franchise of the proprietors.

If it is suggested, that under this claim of power, the legislature might authorize a new turnpike, canal, or railroad on the same line with a former one to its whole extent, we think the proper answer is, that such a measure would be substantially and in fact, under whatever color or pretence, taking the franchise from one company and giving it to another, in derogation of the first grant, not warranted by the right of eminent domain, and incompatible with the nature of legislative power. In that case the object would be to provide for the public the same public easement, which is already provided for, and secured to the public, by the prior grant, and for which there could be no public exigency. Such a case therefore cannot be presumed.1

If the whole of a franchise should become necessary for the public use, I am not prepared to say, that the right of eminent domain, in an extreme case, would not extend to and authorize the legislature to take it, on payment of a full equivalent. I am not aware that it stands upon a higher or more sacred ground, than the right to personal or real property. Suppose, for instance, that a bridge had been early granted over navigable waters, say in this harbor, at the place where. East Boston ferry now is, and the extension of our foreign commerce, and the exigencies of the United States in maintaining a navy for the defence of the country, should render it manifestly necessary to remove such bridge; I cannot say that it would not be in the power of the legislature to do it, paying an equivalent.

Or suppose, as it has sometimes been suggested, that these dams of the plaintiffs, by checking the tide-waters flowing through the channels below Charles River bridge, and through the harbor of Boston, should have so far altered the regimen of the stream, as gradually to fill up the main channel of the harbor and render it unfit for large ships; suppose it were demonstrated, to the entire satisfaction of all, that this was the cause, that the harbor would become unfit for a naval station, or for commerce, by means of which most extensive damage would ensue to the city, to the Commonwealth, and to the Eastern States (for I mean to put a strong case for illustration), would it not be competent for the legislature to require the dams to be removed, the basins again laid open to the flux and reflux of the tide? I am not prepared to say that it would not, on payment of an equivalent. But it is not necessary to the decision of this cause, to consider such a case, because, as before said, the act of the defendants does not, in any legal sense, annul or destroy the franchise of the plaintiffs.

Nor, in the opinion of the court, is this exercise of power by the

1 Compare Greenwood v. Freight Co. 105 U. S. 13, and 1 Hare, Am Const. Law, 345.ED.

legislature, a law impairing the obligation of contracts, within the meaning of the Constitution of the United States. A grant of land is held to be a contract within the meaning of this provision; and such grant cannot be revoked by a State legislature. This was held in regard to the revocation of grants of land by the State of Georgia. Fletcher v. Peck, 6 Cranch, 87. And yet there can be no doubt, that land granted by the government, as well as any other land, may be taken by the legislature in the exercise of the right of eminent domain, on payment of an equivalent. Such an appropriation therefore is not a violation of the contract by which property, or rights in the nature of property, and which may be compensated for in damages, are granted by the government to individuals.

The right by which individuals owning mills are enabled to flow the lands of proprietors of meadows is essentially of the same character with that of the plaintiffs, and the main difference is, that the former are obtained by the operation of a general law, and the latter by a special act. But in the former case, the mill-owners obtain an easement or franchise, not a property in the soil, and that, without and against the consent of the owners, upon high considerations of public expediency and necessity. But it seems to us, that it cannot be successfully maintained, that a railroad, canal, or turnpike, could not be laid over such a pond, because it would diminish the capacity of the pond, and proportionably lessen the mill-power. Forward v. Hampshire and Hampden Canal Co., 22 Pick. 462.

It is difficult, perhaps impossible, to lay down any general rule, that would precisely define the power of the government, in the exercise of the acknowledged right of eminent domain. It must be large and liberal so as to meet the public exigencies; and it must be so limited and restrained, as to secure effectually the rights of the citizen. It must depend in some measure upon the nature of the exigencies as they arise, and the circumstances of particular cases. In the present case, the court are all of opinion, that the rights of the plaintiffs, in the land of the full and receiving basins, are not of such a character as to exclude the authority of the legislature, from taking a small portion of it, for laying out a railroad, it being for another and distinct public use, not interfering with the franchise of the plaintiffs, in any other way than by occupying such portion of this land.

But it is contended that the Act in question is not valid, inasmuch as it does not provide a compensation for the damage done to the plaintiffs' franchise. We are, however, of opinion, that this objection is founded upon the assumption already considered, viz., that the taking of a portion of the land over which the franchise extends is a taking of their franchise. The Act does not take away the plaintiffs' franchise, but provides for taking part of the land, in which the plaintiffs have a qualified right of property. This is provided for in the first section of the Act of Incorporation, which directs that all damage occasioned to any person or corporation, by the taking of such land or materials, that