4. It has been held, that in a parish through which a railway is granted, with the right to traverse the highways of such parish, or alter their levels, by restoring them to their former usefulness, or * substituting others, to the acceptance of the board of surveyors of such parish, and if that is not done, the board of surveyors to cause it to be done, it was not competent for such board to take the law into their own hands, and put up fences, so as to obstruct the passage of engines across the highways, on the ground that their passing endangered the safety of the public.4 5. It was considered that the board of surveyors, in such case, should have applied to a court of law to award a mandamus, requiring the railway company to construct the substituted highways in the proper mode, or to a court of equity, for an injunction to effect the same object. In such case it was held, that the right of the surveyors was a private right, and that they were in no way interested in the question of public safety. 4 5 4 6. Injunctions have been granted against companies proceeding to take land contrary to the provisions of their charter,5 or where their powers had expired. But where the company had rightfully purchased a lease of the land, and were rightfully in possession, a court of equity will not restrain them from proceeding to take the fee, upon the ground that they have no such power under their charter, as such proceeding would, upon the assumption, convey no title to the company, and there would be no necessity, or propriety, in withdrawing the determination of the mere question of title from the courts of law, whenever it shall arise.6 . 7. But where the company had taken possession of lands, and begun their works, before paying or depositing the stipulated price, according to the requirements of their charter, it was held proper to restrain them by injunction, and also to dissolve the injunction, upon payment of the price into the Court of Chan tal has been subscribed and every share allotted. M'Dougal v. Jersey Imperial Hotel Co., 34 L. J., Ch. 28. * The London & Br. Railw. v. Blake, 2 Railw. C. 322. 5 Stone v. The Commercial Railw., 4 My. & Cr. 122; River Dun Nav. Co. v. North Midland Railw., 1 Railw. C. 135. • Mouchet v. The Great Western Railw., 1 Railw. C. 567. See ante, § 97. cery, where the land-owner had chosen to come for redress, although the company's act required the deposit in the Bank of England, where the title was disputed, as in the present case.7 8. In a case where the Court of Chancery considered that the company had taken possession of land without paying the price, according to the true construction of the contract between them and the owner, they held the party entitled to redress by way of injunction. But upon the company stipulating to pay the price by a short day, the injunction was suspended to give them opportunity to do so, the company undertaking that if this is not done the court shall regard the injunction as of the day of the arrangement.8 9. The rule laid down by Lord Chancellor Cottenham, and repeated in several cases, that it is the duty of the courts of equity (and the same is true of all courts and of all institutions) to "adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all those new cases which, from the progress daily making in the affairs of men, must continually arise, and not from too strict an adherence to forms and rules, established under very different circumstances, decline to administer justice, and to enforce rights, for which there is no other remedy," is certainly worthy of the ablest, the wisest, and best judges who ever administered the chancery law of England or America.9 10. That similar rules of practice prevail in the American courts of equity will appear from an examination of the cases upon this subject. It was held the court will not interfere by injunction unless the danger is imminent and the damage irre 7 Hyde v. The Great Western Railw., 1 Railw. C. 277. And in such case it is not necessary, in a bill for specific performance of a contract of sale of the land to the railway company, to make others having an interest in the land, as tenants for instance, parties to the bill. Robertson v. The Same, 1 Railw. C. - 459. 3 Jones v. Great Western Railw., 1 Railw. C. 684. In Maryland it is sufficient ground for an injunction to prevent a railroad company from entering on lands that they have not paid or secured the damages. And an averment in the bill of irreparable injury is not required. Western, &c. Railw. v. Owings, 15 Md. R. 199. 9 • Taylor v. Salmon, 4 My. & Cr. 141; Mare v. Malachy, 1 My. & Cr. 559; Walworth v. Holt, 4 My. & Cr. 619 – 635. mediable.10 But the cases where courts of equity have interfered to prevent threatened mischief11 and injury without reparation,12 Spooner v. McConnel, 1 McLean C. C. 338; Mayor of Rochester v. Curtis, 1 Clarke, 336. See also Jerome v. Ross, 7 Johns. Ch. 315; Sutton v. Southeastern Railw., 11 Jur. N. S. 935. 11 McArthur v. Kelly, 5 Ohio R. 139. 12 Bonaparte v. Camden & Amboy Railw., 1 Baldwin, 221; Gardner v. Newburg, 2 Johns. Ch. 162; Stevens v. Buckman, 1 Johns. Ch. 318; Amelung v. Seekamp, 9 Gill & J. 468; Ross v. Paige, 6 Ohio R. 166; Browning v. Camden & Woodbury Railw., 3 Green, 47; Jarden v. Phil., Wilm., & Balt. R., 3 Wharton, 502; Chapman v. Mad River & Lake Erie Railw., 6 Ohio State, 119. Courts of Chancery have jurisdiction to proceed, by injunction, where public officers, under a claim of right, are proceeding illegally and improperly to injure or destroy the real property of an individual or corporation, or where it is necessary to prevent a multiplicity of suits, although the defendants may be sued at law. As where the commissioners of highways, on the petition of the defendant, had laid out and recorded a private road or way from a lot of defendant, across the ropes and fixtures of the inclined plane of a railway which was used for the drawing up or letting down cars, for the conveyance of merchandise or passengers. Mohawk & Hudson Railw. v. Artcher, 6 Paige, 83. See also Belknapp v. Belknapp, 2 Johns. Ch. 463; Livingston v. Livingston, 6 Id. 497. The courts of equity will interfere, by injunction, in cases of nuisance often, and, where the right is clear and the wrong manifest, will do it without waiting the result of a trial at law. But where the thing complained of is not in itself a nuisance, but only capable of becoming such by relation, the courts of equity will not ordinarily interfere, in that mode, until the matter has been tried at law. But where the magnitude of the threatened injury bears no just proportion to the probability of it being justifiable, the court will not refuse its aid presently. Mohawk Bridge C. v. Utica & Schen. R., 6 Paige, 554; Bell v. O. & Penn. Railw., 25 Penn. St. 160. So also where a railway is being constructed so near a canal, having a prior grant, as to seriously endanger the works of the latter, this being first settled by an issue at law. Hudson & Delaware Canal Co. v. New York & Erie Railw., 9 Paige, 323; In re Long Island Railw., 3 Ed. Ch. R. 487. In Sandford v. The Railw. Co., 24 Penn. St. 378, it is said: "If railway corporations go beyond the powers which the legislature has given them, and in a mistaken exercise of those powers interfere with the property of individuals, the court is bound to interpose by bill, injunction, or otherwise, as the case may require." S. P. River Dun Navigation Co. v. North Midland Railw., 1 Railw. C. 135; Agar v. Regent's Canal Co., Cooper, 77. An injunction will not be granted to prevent a corporation from enforcing an assessment, by declaring its proceedings illegal, where the consequences would be injurious to the corporation and of no substantial benefit to the complainants. See Jones v. City of Newark, 3 Stockton, Ch. 452, where this subject is ably discussed. are very numerous in the American Reports of Chancery decisions. In Tucker v. Cheshire Railw., 1 Foster, 29; s. c. 1 Am. Railw. C. 196, it was considered material to the inquiry, whether the defendants' bridge so interfered with a former toll-bridge across the Connecticut River, as to justify an injunction, that railway communication was not in use, at the date of the plaintiff's grant, and that it could not therefore have been in the contemplation of the legislature to exclude it, and that a railway bridge did not subserve the same purpose for which the toll-bridge was erected. And in Newburyport Turnpike Co. v. Eastern Railw., 23 Pick. 326, it was held, that a statute, giving railways the power to raise or lower any turnpike, or way, for the purpose of having their railroad pass over or under the same, will justify a railway in raising a turnpike-road to enable them to pass it upon a level, and an injunction was denied. And where the charter gave the company the right to construct lateral routes, it was held that a shareholder could not restrain the company from the exercise of such powers as were conferred by the charter, and in the manner therein specified, on the ground that it will diminish his dividends, or impair the resources of the company. And that where the charter fixes no limit of time for the exercise of such powers, the court will not ordinarily prescribe one. But such grants must be express, and will not be implied. Newhall v. Chicago and Galena Railw., 14 Illinois R. 273. In Morgan v. New York & Albany Railw., 10 Paige, 290, it was held, that an injunction, which is to deprive the officers of a corporation of the control of all its property, will not be allowed ex parte. In cases of great injury and where irremediable mischief will be likely to ensue, injunctions are commonly allowed ex parte, and the defendant may move to dissolve before answer. Minturn v. Seymour, 4 Johns. Ch. 173. See also Poor v. Carleton, 3 Sumner, 70; New York Printing & Dyeing Establishment v. Fitch, 1 Paige, 97. But in cases of importance, involving no pressing peril, an ex parte injunction should not be granted. Accordingly one was denied, to restrain defendant from running a steamboat, and landing passengers at the plaintiff's dock. N. Y. Print. & Dye. Est. v. Fitch, supra. So also to take from the directors of a bank the control of its business, on the ground that their election was obtained by fraud. Ogden v. Kip, 6 Johns. Ch. 160. See also Stewart v. Little Miami Railw. 14 Ohio R. 353; Ramsdall v. Craighill, 9 Ohio R. 197; Walker v. Mad River Railw., 8 Ohio R. 38. But where, by special act, a railway was required to pass through a certain street, thereafter to be laid, on certain conditions, and not in any parallel street, the Court of Chancery enjoined the company from entering upon private land, for the purpose of locating their road, until the street prescribed in the act should be opened. Jarden v. Phil., Wilm., & Balt. Railw., 3 Wharton, 502. So also from.condemning any land, which, by their charter, they have no power to take. Moorhead v. Little Miami Railw., 17 Ohio R. 340. *SECTION II. Injunctions to protect the Rights of Land-Owners, and of the Company. 1. Company restrained from taking less land | 4. May be restrained from carrying passenthan specified in notice. gers beyond their limits. 2. Sometimes injunction refused, where great 5. So also from taking land beyond the reasonloss will ensue. able range of deviation. 3. Will not enjoin company to try constitu- 6. But not where the company have the right tionality of their act. to take the land. * § 206. 1. In accordance with the opinion of the Lord Chancellor, in the note (2) to the last section, it has been held, that, where the company gave notice to take a certain quantity of land, and subsequently proceeded to summon a jury to estimate a less quantity, they should be restrained from proceeding, by injunction, at the suit of the land-owner, the notice to treat constituting the relation of vendor and purchaser between the company and land-owner, as to all the land included in the notice.1 * But where the defendant had addressed letters to the plaintiff, stating the terms upon which he would allow them to carry their railway over his land, and the company commenced their operations upon the land, in conformity with the propositions, and with the knowledge of defendant, it was held that plaintiffs had thereby accepted the defendant's proposition, and were bound by its terms, and that the same was consequently binding upon defendant, citing Mactier v. Frith, 6 Wend. 103, 119. The plaintiffs having substantially performed the contract, and the defendant having shut up the road, after it had been used several months, a perpetual injunction was granted against defendant obstructing the road, but without prejudice to any claim he might have against the plaintiffs. New York & New Haven Railw. v. Pixley, 19 Barb. 428. 1 Stone v. The Commercial Railw., 1 Railw. C. 375; s. c. 4 Mylne & C. 122. But in Hedges v. Metropolitan Railw., 28 Beav. 109, it was held that the notice of a railway company to take lands cannot be considered higher than contracts, and, after great delay in proceeding on such notices, they will be considered as abandoned. And in King v. Wycombe Railw., 6 Jur. N. S. 239, it was held the notice to treat alone, not followed by any act to obtain possession, was not a contract binding upon the company. And in Mouchett v. The Great W. Railw., 1 Railw. C. 567, the vice-chancellor declined to restrain the company from assessing the value of the fee-simple in land, upon the alleged ground that *478-480 |