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confined to the territory actually occupied, (i. e. the planks of a bridge or the ferry ways) though he was of opinion, in this case, that the franchise did not cover the whole of that part of Charles River between Charlestown and Boston. He seems to have entertained the opinion that covenants, protecting the inviolability of the franchise within its undefined limits, might be implied: still he is of opinion, that the grant in question might lawfully have been made, on the provision of adequate constitutional indemnity. He is of opinion that such indemnity is required, because the Warren Bridge is in a legal sense near to the old bridge, and productive of injury to it.

But if the damage is merely consequential, and does not result from an actual invasion of the franchise itself, it is without redress. If the limits of the franchise had been confined to the space of one thousand feet on each side of the bridge, a bridge at a greater distance might perhaps work entire destruction to the old structure; still there would be no foundation for a claim to compensation, for injury springing from without the franchise. The opinion of the judge, therefore, is, that a vested franchise may be invaded, if the consequent damage is provided for; that a covenant implied in a grant of the government may be lawfully broken, and that the franchise itself may be destroyed, if the public good, in the opinion of government, requires it. In the case under discussion, the franchise before granted by the legislature, and covenanted to be upheld, is granted to others to be exercised for the same purposes by the new grantees; the compact is broken for the public good. What must be the operation of the clause of the constitution of the United States conservative of contracts, upon a case like this?

But in what cases are infringements upon private property, which is the fruit of legislative compact, admissible? Unquestionably there are such, and the great question in dispute resolves itself into this-Is this case of that description? The bill of rights of Massachusetts impliedly, at least, authorizes the taking of private property for public uses upon sufficient indemnity. This appropriation must always be for public uses, but in this case the public duties might have been as effectually performed by the first corporation. So that the property of individuals thus appropriated was taken for private uses, (i. e. for the benefit of the second corporation.) The first company

had contracted to perform certain duties incident to the enjoyment of the franchise, such as to build the bridge, keep it in repair, &c., and the government had, on its part, contracted to perform certain duties, such as have been already noticed. This contract the government have dissolved, for the sake of making the same, or a similar contract, on somewhat better terms with other individuals. As in the analogous case of a disseizin of real property- the government have disseized the original grantees, and are either in possession themselves, (by a free bridge) or have others in possession under them (by a bridge with perhaps reduced tolls) at a higher rent. It is no answer to say that the property has been taken for public uses justifiably, because public advantage resulted from diminished tolls, or freedom from tolls. The public may have been benefited, but it is by a breaking up of the contract, and by an appropriation of the consideration given for the exercise of the franchise, without an equivalent rendered. The public would be advantaged in the same manner by a reduction of interest upon the national debt. That which is assumed to be public necessity is merely an interest in making a new bargain on better terms. This, with the substitution of other individuals in the enjoyment of the franchise, is all that has been effected by the new grant; its end and its object.

But again, there is no provision of indemnity in the second grant, and if there were, it would render the project entirely nugatory. The object is a reduction of tolls, which should render the terms of the contract more favorable, or another object may be the bonus received for the grant, or a reversionary interest in the tolls themselves. But the tolls received on the new bridge, and the value of the reversionary interest in those tolls, would be the measure of damages, nothing, except specific performance, would be adequate indemnity. It is presumed that if the court, in this case, had made such indemnity the basis of their decree, it would have been little satisfactory, either to the legislature making the grant, or the subjects of their bounty.

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This consideration - adequate indemnity - adequate indemnity — amounting as it would to destruction of the second grant, might make an end of the discussion; but as it is presumed that the indemnity contemplated by the learned judge was entirely inadequate, we will



proceed to inquire in what cases these appropriations of private property created by government may be admitted.

And first it may be premised, that in all cases of direct interference with the contracts of government, there occurs the necessity of preserving the contract, as well as providing indemnity : the same is not true in regard to all indirect interference, or in relation to the property the subject of such contracts. The constitution guaranties contracts, but not the undiminished enjoyment of the fruit of contracts. Property held by the contract of government, is subject to all the burdens which are imposed upon the mass of property, and is subject to like incidents.


We think it may safely be assumed that such appropriations may be admitted in all cases where contracts are not directly or fraudulently violated, and adequate indemnity can be made. A legislative act of incorporation, like that of the Warren Company, and grant of a franchise, may have certain efficacy given to it on the principle, valeat quantum valere potest. It prima facie estops the government in an indictment for a nuisance. It creates à corporation, and it may be made ancillary to the former company, receiving the tolls, &c. in trust. This would be indemnity, but, as is plainly discerned, the object of the grant would be mainly lost.

As an instance of adequate indemnity for property taken — if the legislature had seen fit to incorporate a company for the improvement of the navigation of Charles River, it might have been necessary, to the full joment of such grant, and for carrying it into effect, to have opened a passage through the bridges upon the river, which were previously authorized by legislative grants; adequate compensation might be rendered to these bridges by providing draws, or by payment of money,and the necessity of the measure, the legislature are competent to determine. It might even be necessary to destroy entirely, perhaps, one of the bridges; in such case payment of money to the full value of the franchise would be adequate indemnity. So if the whole of the water between Charlestown and Boston were needed by the public as a harbor for vessels, the government would be justified in establishing such accommodations for the purposes of navigation, on providing constitutional indemnity for the grantees of other and independent franchises, created for different objects, and exercisable over the same territory. In




the case we supposed of a mill-dam created under authority of government, it might be constitutional for the government, for certain public purposes, to authorize the entire diversion of the river. The government cannot constitutionally revoke a grant of a part of the national domain, and reconvey the land to other persons, but may constitutionally create certain privileges to be exercised upon the territory itself, which are incompatible with a full enjoyment of the title, and perhaps destructive of it. On the provision of indemnity, the government may sequestrate such land for the uses of a turnpike road or a canal. In all these cases the contract is only incidentally effected, the interests of individuals are sufficiently provided for, and there is no violation of compact.

There is nothing analogous to a disseizin of land which exists where a new grant is made of a franchise, concurrently to be enjoyed with another franchise of the same kind, where the disseizin, or the analogous breach of contract, is a wrong, and cannot be compensated by a continuance of the wrong and payment of damages. There is no violation of contract in the cases mentioned, because there is no express covenant that the franchise held of the government shall not be subject to like burdens and incidents as other property; and such are not among the number of implied covenants, because the exercise of good faith in relation to legislative grants does not place such property on higher ground than the property which is burdened alike for the benefit and protection of the whole. If there were express covenants of this character, they would be unconstitutional and merely void. They would be destructive to the frame of government, and effectually impair the 'free course of legislation.'

The government cannot exempt certain individuals, or any species of property, from the operation of that principle, which subjects all property to the common burdens of the state.

The conclusion is that government may invade, after providing suitable indemnity, a franchise which it has created, when the duties to be fulfilled by the new are not within the scope of the old franchise, and when the new franchise is of a higher class, and demanded by the public exigency, and necessarily conflicts, in its operation, with an existing right. The grant of the Warren Bridge Company is certainly not of this character.

In the other case at the head of this article, the same principles were involved, which were discussed in the case reported in Pickering's Reports.

The case was shortly this: The plaintiffs were invested with authority to build a bridge, and lock the falls in Connecticut River at Enfield, Ct. in 1799, with the condition annexed to their grant, requiring the falls to be locked and the bridge to be built within a prescribed time. At the suggestion of the legislature of Connecticut, the condition was waived so far as respected the building of the locks; and the company authorized to suspend the erection of the locks, until the further order of the legislature. In 1824, the defendants were incorporated and invested with the same privilege of locking the falls which had been granted twenty-five years before, to the old company. The defendants, in 1827, proceeded to lock the falls, and the old company petitioned for an injunction. On the hearing upon the answer of the defendants, the court were of opinion that the rights of the first company were unimpaired, not having been forfeited or resumed by the legislature, and that consequently the grant to the new company was merely void. The doctrine, that the second grant could be upheld by the provision of indemnity to the first, was distinctly repelled by the court. It was also established that the franchise could not be resumed but by judicial process, nor regranted until after such resumption.

The learned court, however, came to the extraordinary conclusion that the defendants could not be restrained by a court of chancery, because the plaintiffs were not in possession of the franchise, receiving the profits, and because of the laches of the first grantees in delaying to build. But a court of chancery could not collaterally inquire into the relations of the company with the government, as it respected a breach of condition, if the state had not taken advantage of the forfeiture. If the delay was permitted by the state (which was the fact) there was no laches; but if the condition was broken by the delay, the government may elect to enter or waive the breach- if it is waived, the condition is gone, and it is presumed to be waived until entry by judicial process; and the state cannot, after a waiver, set up the breach to escape a performance of its independent covenants with the company. The legislature who waive the condition or permit the delay, are competent to decide upon the public



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