University of South Carolina Libraries
To tho Stockholders of the S. C. R. R. Oqppany. At the meeting of the Stockholders of ibo ?s>ulb Carulihu Railroad Couyiany, on ^^i^Lh instant, the President ciAwd'tbat he had " : tie- t*-i? Mi. Conner, the"iloHoltor P^ff^n* Company, to stat?, tor tho Information of ihc uJoetinjr, ihcbJJuVy and :?ndl-' tton of tho litigation pending between th? South ; .iiol.uu Kai I road Company nod tho Colombia and Augusta Re.i!ro:iJ Company." Professional engagements as counsel in r. h .< M ?C. then on triol, prevented ;n?? from attending tho meeting and furnishing thc hi6 nan'.iou required. It is still desired that tho information should bc ho Dished; and ns the d?cision ul' the oaso atfects very materially tb? interests of ibo corporation, and ia of mush im? portance to the stockholders, I have regarded th? publication of tho argument, which was had beforo the- Supreme Court of tho Slate, na brat calonhtcd to pouvey a elnar und distinct idea of the issues between thc qojnpaaii . In order ta understand the dl:cus?lon it ls Uoocasary, however, to narrate tho his? tory of thc oats,, and state the oircuinstanco:- which occasioned ibo appeal to Ibo Su? preme Court. This I shall endeavor to do o3 briofly a.* Is consistent with accuracy. The Columbia and Augusta Railroad Company was Qrst chartered in 186$. Nothing was dono under this charter. Ia icC'?, under the pressure of military no-, oesslty, whioh, demanded a railroad communication between Coiutnbbi and thc West, ! shorter and less liable to hostilo i?terrapllon than that existing, tito charter of thc I Columbia au J -Augusta Railroad Company ?raf r.n-.cnded, subscription, made, and j the work commenood. Every one familiar with the history of thc tUuc, knows how bullo it would have | been to oppose to the great want of tbs oountry tho privilege of a corporation. The safety of the Seato was tue supreme law, and p..vs.te Interests yielded to public necessity. But whoa the war ended, and tho road wu3 not compk.de. 1, thc reacon.i-for w Ith? holding opposition ceased, and in AnriL 1S?7, the South Carolina Railroad Com? pany Hied its bill, to enjoin tho Columbia and Augusta Railroad Company from completing the road, so aa to connect Augusta and Columbia, on-thc ground that the charter of the latter wo? in derogation of thc right j previously conferred upon the South Carolirvi Rr?lroud Company, and to enjoin them from connecting Oranite viUo and Augusta, on tho grouud that tho power to do sb was not given in their charter, and that thc ri ? ht to build and keep up n roil way -?orurounioat ion hetwenn those towns was oxprcs*.Iy and exclusively vested in the South Carolina RbUrcaa Company. * When tho bill wno Hied tho road of tho Columbia anti Augusta Company wa" gradod to within a lew milc3 of Grunitevilie village-distant about a mile from GraniteviUe station, on tue South Carolina Railroad Company-and thc line of thc road from OranltevUlo to Hamburg was not definitely located. The curs was argued beforo Chancellor Cm roil, who refused tho injunction Tending tho decision by thc Chancellor, thc Columbia and Augusta Railroad Com? pany, without notice to tba South Carolina Railroad Company, and without con? sultation between thc ooiapauics or their engineers, ai to thc best location, and thc best mode of crossing with due regard to thc convenience of both companies and thc aafoty of the public, eut tiis rails of tho South Carolina Railroad about a milo below thc depot ID Columbia and crossed tho track ca thc sumo lovel. Their right to do so was resisted, sud was one of tho questions submitted on appeal. Tho caso was heard by tue Court of Errols in Deoembcr, ?S07, cud lt was adjudged that the Columbia and Augusta. Railroad Company hud tbs right to connect Columbia and Augusta, and tho light to build their road r;a Granitevillo, and thereby to connect Graniteviilc and Hamburg; that the company had tho right to cross the track of the South Carolina Railroad Company near Columbia, hut should "uso it with extraordinary care In euucrciinatloa to tho rights of the plaintiff," and "with responsibility lor ail damages that may cotna directly or indirectly" from negligence <?: d?tendants. Thc que-sti ns r.t :c;u': between the two companies had boon heard und decided by thc appro) ir! .rte legal tribunal, and in that decision inc South Carolina Railroad Company acquiesced without further appeal. Tho Directors had discharged their trust in submitting the rights which they represented to legal adjudication, and the rcsponsibiUty was i.ot with iheiu bu: with the Courts. Ihe rights given to tho Columbia and Augusta Railroad Company by the judg? ment of tr.c Court, -ero tbc richi to connect Columbia and Augusta, and Grunitc ville and Augusta. Thus much und no more. In October, 1807, the Columbia and Augusta Railroad Company applied to Judge Aldrich to condemn the depot lo; of U'e South Carolina Railroad Company at Graniteviilc tor the puq>c*o of building tbeir track through it. This application was resisted, und Judge Aldrich decided that uuder .keir charter thc Columbia and Augusta Railroad Company had no right to condemn te* its use the hinds or right? of Tray cf thc South Carolina Kai'road Companj. From luis decision no appeal was taken, and tho question - as regarded as settled. in September, 1803, an A?? was passed by thc Legislature to declare thc mr.an.er by which lands tad the right et v.*r ovcr ?unj.. might be condemned. Shortly after its passage, and without ??gal proceedings of any kind, the Columbia and Augusto Railroad Company entered upon the lauds of thc South Carolina Rail? road Company und commenced constructing their io~d. A bill in equity was tiled, jiot to eujovn thoa from eonttrcctiug their road, but Simply to enjoin "them from constructing it en ;'? land* o.tu r?tkti of mi, ci th* South Gu JMtroad Company. The Cohun-ia end Augusta Railroad Company pleaded that the question wa.? re? adjudicaia. Mr. Justice Willard, in delivering his opinion, bela-hat the question submitted wris not adjtut :ata, that tho location of thc Columbi an,j Augusta Railroad Company, "as Interfering with their (the .iuiiih Carolina tujjroad Com? pany's J propi stnry i ghts, ?ces not appear te have bean bet?re the Court,except ir. relation t. *:i:e crossing at Columbia." iio further held that tho Column and Augusta Railroad Company were trespassers, ;. ud ?ranted an order enjoining \hem from entering upc-1 ti;-; muds, rights et way <>r fran?aises td'tho South Carolina i-iij. road Company, with learo to thu Columbia and Augusta Railroad Company to mo*\ I to dissolve Cu. injunction .. . . - thcheariug, upon proof ti.-.t they had "duly acquired' tho right." This ordo: was dani November 20, lS'JS, and ou lit of Dcoomber, in pursuance of | aotisc dated November 24, 1808, application was made to Judge Platt, at Aiken, for condemnation oi a part ?. tho depot lot nt Gnu?tevill?, cid ol' large psittons of the land aird righi .. v.xy vi i o S'JUIII Careen I? ilro?d Company, including ground! purchased before tko wer >-j tho Sout? C&ful? ! ?i.ii;..-. ? Company (ur the purpose' ol' constructing a rc-.- traok vu order to avoid dangerous and up?u wbion-i tuoT had E . r --- ' 'its construction of the Columbia cn' i Augusta Road cs projected would occupy the very ground purchased hythe South j Carolina R&ilreau Company icr thc purple of Straightening their track, would render tuet improvement iva\ la aud ... juld in: ..? ose the track of tho Columbia and Augusta Hoad between the South Carolin? Railroad and the hills, willoh they nad pureuasod foi the ptu"j ie of procuring tho supplies of earth necessary In the repairing of the ror.d. Ike applieation was rc:ij;ed, t ::1 the legal right ci Columbia and Augusta Company to appropriate to i'.z use innis purchased cr.,1 rights of wny granted to thc Soutu Cu:...ur. Railroad Company was denied. A formal return setting forth the iogai grounds upon walch the irp] .;':.iicn was resisted was t'.l-jd beforo Judge Platt. Tho Court of Appeals had decided in 1858, (Rlaue'. ca:o, Rich., 228,) that when? ever tbs right to condemn w??s rcsistod, tb;:c must bo s "preliminary trial and cectsiuu" oi th<? right, a :d the oounsel i^r thc South Carolina Railroad Company cnd^fcvo'rcd to argue tl_t question o* right, a:.u obtain fruin Judge Platt a decision upon Ine Judge deoliuccl to bear urgumeut upon that queslion, and ia his opinion, mad? December 4, 1808, v.nA: "i du not consider mysell at liberty to enter? tain and decido upon any asserted rigiite or obje'.>tioi:u, except the simple ono of nindrcr.ee.'' The euuss was ccu;iu.?c? by Ll? HoL,.? 'at..ii tuc 10th December, l?i thc purpose of I taaisg testimony upon tho/aci of whether tho Columbia end Augusta Railroad | wouiu be a u.u i.au^i:, and on the 17tb D?:ember; Jndge Platt delivered his opinion nnd order. In tho origiua! opinion, copy of whieh was furnished to tho counsel foi the ?south Carolina Railroad ^ ..-.t,r>uy, the uiiutu of the Columbia and Augusta Rail? road wa? regarded aa . ;daoed from ?fty .... to ten feet, tho opiuiou was'iu^ le jiart e?f the order, and the oruer Issued to impnuel the jury to assess compensation. Sub? sequently, and without catiiiK t? the i';uth Carolina Railroad Compony cr Its counsel, the opinion was altered, :..s words "ten feet" were stricken out, and In lieu thereof was su?s;it.::o? " ?u?irient width of grouud fer ike constniction of their roadbed'' Tlia Jury w^.-e draws :r.:ddr.- cf Deeembci . f.t i^dge&eld C. H., and sum? moned to at:?:ui at viraniteville ou January ll. i?o notleo was givon to the officers ot the Seuth Cui-.iin- itaUroad Company cr to thc counsel speelally charged with the cause_no time was allowed fer the bttuimoniiig of witnesses-no testimony was taken-no est?malo made ol' thf. special dr.m?g.' ?:.e Jury simply li.oke.i at thc Xand and assessed compensatiou u* ^iic. His Honor hud saia in his opinion that to take fifty f^cc ".mus? work z?.h hin? drance as thc- law had forbidden." "T.... Legislature never intended to justify so extensive cu encroachment." The jury oondeinned sixty feet for a space ci' throe and three-quarter iuiics! Tho compensation assessed was paid, and the Columbia und Augubta Company moved, 'celorc Judge Boour, to disioivo tho injunction. The couu:el for thc south Carolina Rr.iircad C-.:.'i liny ; ssisted tho ructiou on the giound that so far from "tho right1'haviug ije.-n .. n.uy acquired," the right Led not even been discussed: that Judge P:avt u,id ?ti;.sci to i.e.-.r and decide it; that only thc value uiwbat was taken had been adjudged, r. .*. the rig ut io take; that iu: rig ut was distinctly put in i-.uic, und that the bjutb '.ce tun Railroad Company could not bc diveste 1 of its property and franchises, uatu the right of tho Columbia and Augusts Company to take them pad be?n adjudged. It w.'s replied ti.-'. Judge ? latt, ia granting tho order to impanel thc j ur v, had ?ctermined thc qnc?iion ; tr.&t his action was Uselsivc aud could not be overruled by e-notuur Circ;^: Judge sitting iu judgment ou a separate branch of the case. These views apparently v^i^uiei.aeci themselves to Judge Boozer, for iii a formal Order of a few lines be dissolved the .suuuotlou. Tho anomaly was thus presented o: a corporation'being dcpihoi ol its property without tue right to iaice having ever boen adjudged by any legal tribunal. Before every tribunal iu 'vu;ci: tho ca?o Lud been heard, in every form iu which the ?suc could bo raUoJ, tho legal right had leeu presented ur.d u decision Of it earnestly usked, bu- in vjih:. Beforo Jndge Platt !t w-r said, Judge iioorcr wiil decide it, and Judge Platt ftas.ed th.- question by undecided. When tito cause came bclore Judge boozer, it wes said Judge : latt hui deeded it, ard Judge Looicr jiu.ply dissolved the injunc? tion without .i v-j,.? o Ijudioating tho right Belloving thut the South Lruolina Kuiircai Cciuoony oouid te deprived ol its property only by tuc judgment of a v.ourt determiniDg thc question of legal righi, tue weelo casa was : w~ by motion foi prohibition to tho Supreme Court, in order that that tribe?a!, ; joially empowered by the constitution to exercise " a general supervisory contioi ovci Bil lue Courts iu the State " aud whose decisions would be binding ULOU all subordinate (.carts, mi^bi decido all tuc questions at issue between the two companies, r....i determine oy legal ludgment the light? of each. The VIC-TI urged ou be!.ult vii tu? South Carolina Ru il rua I Company ?viii appear fron? tho following arguments. Pending the legal proceedings au oSort wa? made to terminote the litigation by reiorring all tho questions at us?? to ike urctttation of a oommittte composed of | turee directors of ;ompany ... correspondence upon the subject i- appen to its a:?.uu<ut? JAMES CONNER, .jot?nitor Smith Varnliiirt RailtxHtH Company, Us THE SUPREME COURT. iiEZ STATE EX RELATIONS TUE ?O?TH CAROIiTNA BAILBOAP COMPANY j.UL COLV^ILBIA ..;.i> AUGUSTA ti ii. UOMPANV ?GGESTI02? IX PiiOHJBiliu.; J AMBS CONNEP. and A. G. MAG-RATH, for Relators ?TjELTONj U?XMMINGER und CARROLL, fot I???'pO?ldt/l(? ARGUMENT or JAMES CONNER, OF COUNSEL FOR RELATORS . May it pleas? the Court : Before entering upon tho argument of tin? case, let US first oncleavor to ascertnin dourly what are the is?ucii ?L.v.;ivett. ' . ii is somewhat singular that in o litigation so protracted, and.which, . ... ' J-. I:.:;. ; .s been oe?'oPQ so ??aoy tiibii nal?, ?.?.:'e> shouici be any doubt or misapprehension as to the question to be decided by tho Court, Yot, there is probably no To tho Stockholders of the S. C. R. R. Oqppany. At the meeting of the Stockholders of ibo ?s>ulb Carulihu Railroad Couyiany, on ^^i^Lh instant, the President ciAwd'tbat he had " : tie- t*-i? Mi. Conner, the"iloHoltor P^ff^n* Company, to stat?, tor tho Information of ihc uJoetinjr, ihcbJJuVy and :?ndl-' tton of tho litigation pending between th? South ; .iiol.uu Kai I road Company nod tho Colombia and Augusta Re.i!ro:iJ Company." Professional engagements as counsel in r. h .< M ?C. then on triol, prevented ;n?? from attending tho meeting and furnishing thc hi6 nan'.iou required. It is still desired that tho information should bc ho Dished; and ns the d?cision ul' the oaso atfects very materially tb? interests of ibo corporation, and ia of mush im? portance to the stockholders, I have regarded th? publication of tho argument, which was had beforo the- Supreme Court of tho Slate, na brat calonhtcd to pouvey a elnar und distinct idea of the issues between thc qojnpaaii . In order ta understand the dl:cus?lon it ls Uoocasary, however, to narrate tho his? tory of thc oats,, and state the oircuinstanco:- which occasioned ibo appeal to Ibo Su? preme Court. This I shall endeavor to do o3 briofly a.* Is consistent with accuracy. The Columbia and Augusta Railroad Company was Qrst chartered in 186$. Nothing was dono under this charter. Ia icC'?, under the pressure of military no-, oesslty, whioh, demanded a railroad communication between Coiutnbbi and thc West, ! shorter and less liable to hostilo i?terrapllon than that existing, tito charter of thc I Columbia au J -Augusta Railroad Company ?raf r.n-.cnded, subscription, made, and j the work commenood. Every one familiar with the history of thc tUuc, knows how bullo it would have | been to oppose to the great want of tbs oountry tho privilege of a corporation. The safety of the Seato was tue supreme law, and p..vs.te Interests yielded to public necessity. But whoa the war ended, and tho road wu3 not compk.de. 1, thc reacon.i-for w Ith? holding opposition ceased, and in AnriL 1S?7, the South Carolina Railroad Com? pany Hied its bill, to enjoin tho Columbia and Augusta Railroad Company from completing the road, so aa to connect Augusta and Columbia, on-thc ground that the charter of the latter wo? in derogation of thc right j previously conferred upon the South Carolirvi Rr?lroud Company, and to enjoin them from connecting Oranite viUo and Augusta, on tho grouud that tho power to do sb was not given in their charter, and that thc ri ? ht to build and keep up n roil way -?orurounioat ion hetwenn those towns was oxprcs*.Iy and exclusively vested in the South Carolina RbUrcaa Company. * When tho bill wno Hied tho road of tho Columbia anti Augusta Company wa" gradod to within a lew milc3 of Grunitevilie village-distant about a mile from GraniteviUe station, on tue South Carolina Railroad Company-and thc line of thc road from OranltevUlo to Hamburg was not definitely located. The curs was argued beforo Chancellor Cm roil, who refused tho injunction Tending tho decision by thc Chancellor, thc Columbia and Augusta Railroad Com? pany, without notice to tba South Carolina Railroad Company, and without con? sultation between thc ooiapauics or their engineers, ai to thc best location, and thc best mode of crossing with due regard to thc convenience of both companies and thc aafoty of the public, eut tiis rails of tho South Carolina Railroad about a milo below thc depot ID Columbia and crossed tho track ca thc sumo lovel. Their right to do so was resisted, sud was one of tho questions submitted on appeal. Tho caso was heard by tue Court of Errols in Deoembcr, ?S07, cud lt was adjudged that the Columbia and Augusta. Railroad Company hud tbs right to connect Columbia and Augusta, and tho light to build their road r;a Granitevillo, and thereby to connect Graniteviilc and Hamburg; that the company had tho right to cross the track of the South Carolina Railroad Company near Columbia, hut should "uso it with extraordinary care In euucrciinatloa to tho rights of the plaintiff," and "with responsibility lor ail damages that may cotna directly or indirectly" from negligence <?: d?tendants. Thc que-sti ns r.t :c;u': between the two companies had boon heard und decided by thc appro) ir! .rte legal tribunal, and in that decision inc South Carolina Railroad Company acquiesced without further appeal. Tho Directors had discharged their trust in submitting the rights which they represented to legal adjudication, and the rcsponsibiUty was i.ot with iheiu bu: with the Courts. Ihe rights given to tho Columbia and Augusta Railroad Company by the judg? ment of tr.c Court, -ero tbc richi to connect Columbia and Augusta, and Grunitc ville and Augusta. Thus much und no more. In October, 1807, the Columbia and Augusta Railroad Company applied to Judge Aldrich to condemn the depot lo; of U'e South Carolina Railroad Company at Graniteviilc tor the puq>c*o of building tbeir track through it. This application was resisted, und Judge Aldrich decided that uuder .keir charter thc Columbia and Augusta Railroad Company had no right to condemn te* its use the hinds or right? of Tray cf thc South Carolina Kai'road Companj. From luis decision no appeal was taken, and tho question - as regarded as settled. in September, 1803, an A?? was passed by thc Legislature to declare thc mr.an.er by which lands tad the right et v.*r ovcr ?unj.. might be condemned. Shortly after its passage, and without ??gal proceedings of any kind, the Columbia and Augusto Railroad Company entered upon the lauds of thc South Carolina Rail? road Company und commenced constructing their io~d. A bill in equity was tiled, jiot to eujovn thoa from eonttrcctiug their road, but Simply to enjoin "them from constructing it en ;'? land* o.tu r?tkti of mi, ci th* South Gu JMtroad Company. The Cohun-ia end Augusta Railroad Company pleaded that the question wa.? re? adjudicaia. Mr. Justice Willard, in delivering his opinion, bela-hat the question submitted wris not adjtut :ata, that tho location of thc Columbi an,j Augusta Railroad Company, "as Interfering with their (the .iuiiih Carolina tujjroad Com? pany's J propi stnry i ghts, ?ces not appear te have bean bet?re the Court,except ir. relation t. *:i:e crossing at Columbia." iio further held that tho Column and Augusta Railroad Company were trespassers, ;. ud ?ranted an order enjoining \hem from entering upc-1 ti;-; muds, rights et way <>r fran?aises td'tho South Carolina i-iij. road Company, with learo to thu Columbia and Augusta Railroad Company to mo*\ I to dissolve Cu. injunction .. . . - thcheariug, upon proof ti.-.t they had "duly acquired' tho right." This ordo: was dani November 20, lS'JS, and ou lit of Dcoomber, in pursuance of | aotisc dated November 24, 1808, application was made to Judge Platt, at Aiken, for condemnation oi a part ?. tho depot lot nt Gnu?tevill?, cid ol' large psittons of the land aird righi .. v.xy vi i o S'JUIII Careen I? ilro?d Company, including ground! purchased before tko wer >-j tho Sout? C&ful? ! ?i.ii;..-. ? Company (ur the purpose' ol' constructing a rc-.- traok vu order to avoid dangerous and up?u wbion-i tuoT had E . r --- ' 'its construction of the Columbia cn' i Augusta Road cs projected would occupy the very ground purchased hythe South j Carolina R&ilreau Company icr thc purple of Straightening their track, would render tuet improvement iva\ la aud ... juld in: ..? ose the track of tho Columbia and Augusta Hoad between the South Carolin? Railroad and the hills, willoh they nad pureuasod foi the ptu"j ie of procuring tho supplies of earth necessary In the repairing of the ror.d. Ike applieation was rc:ij;ed, t ::1 the legal right ci Columbia and Augusta Company to appropriate to i'.z use innis purchased cr.,1 rights of wny granted to thc Soutu Cu:...ur. Railroad Company was denied. A formal return setting forth the iogai grounds upon walch the irp] .;':.iicn was resisted was t'.l-jd beforo Judge Platt. Tho Court of Appeals had decided in 1858, (Rlaue'. ca:o, Rich., 228,) that when? ever tbs right to condemn w??s rcsistod, tb;:c must bo s "preliminary trial and cectsiuu" oi th<? right, a :d the oounsel i^r thc South Carolina Railroad Company cnd^fcvo'rcd to argue tl_t question o* right, a:.u obtain fruin Judge Platt a decision upon Ine Judge deoliuccl to bear urgumeut upon that queslion, and ia his opinion, mad? December 4, 1808, v.nA: "i du not consider mysell at liberty to enter? tain and decido upon any asserted rigiite or obje'.>tioi:u, except the simple ono of nindrcr.ee.'' The euuss was ccu;iu.?c? by Ll? HoL,.? 'at..ii tuc 10th December, l?i thc purpose of I taaisg testimony upon tho/aci of whether tho Columbia end Augusta Railroad | wouiu be a u.u i.au^i:, and on the 17tb D?:ember; Jndge Platt delivered his opinion nnd order. In tho origiua! opinion, copy of whieh was furnished to tho counsel foi the ?south Carolina Railroad ^ ..-.t,r>uy, the uiiutu of the Columbia and Augusta Rail? road wa? regarded aa . ;daoed from ?fty .... to ten feet, tho opiuiou was'iu^ le jiart e?f the order, and the oruer Issued to impnuel the jury to assess compensation. Sub? sequently, and without catiiiK t? the i';uth Carolina Railroad Compony cr Its counsel, the opinion was altered, :..s words "ten feet" were stricken out, and In lieu thereof was su?s;it.::o? " ?u?irient width of grouud fer ike constniction of their roadbed'' Tlia Jury w^.-e draws :r.:ddr.- cf Deeembci . f.t i^dge&eld C. H., and sum? moned to at:?:ui at viraniteville ou January ll. i?o notleo was givon to the officers ot the Seuth Cui-.iin- itaUroad Company cr to thc counsel speelally charged with the cause_no time was allowed fer the bttuimoniiig of witnesses-no testimony was taken-no est?malo made ol' thf. special dr.m?g.' ?:.e Jury simply li.oke.i at thc Xand and assessed compensatiou u* ^iic. His Honor hud saia in his opinion that to take fifty f^cc ".mus? work z?.h hin? drance as thc- law had forbidden." "T.... Legislature never intended to justify so extensive cu encroachment." The jury oondeinned sixty feet for a space ci' throe and three-quarter iuiics! Tho compensation assessed was paid, and the Columbia und Augubta Company moved, 'celorc Judge Boour, to disioivo tho injunction. The couu:el for thc south Carolina Rr.iircad C-.:.'i liny ; ssisted tho ructiou on the giound that so far from "tho right1'haviug ije.-n .. n.uy acquired," the right Led not even been discussed: that Judge P:avt u,id ?ti;.sci to i.e.-.r and decide it; that only thc value uiwbat was taken had been adjudged, r. .*. the rig ut io take; that iu: rig ut was distinctly put in i-.uic, und that the bjutb '.ce tun Railroad Company could not bc diveste 1 of its property and franchises, uatu the right of tho Columbia and Augusts Company to take them pad be?n adjudged. It w.'s replied ti.-'. Judge ? latt, ia granting tho order to impanel thc j ur v, had ?ctermined thc qnc?iion ; tr.&t his action was Uselsivc aud could not be overruled by e-notuur Circ;^: Judge sitting iu judgment ou a separate branch of the case. These views apparently v^i^uiei.aeci themselves to Judge Boozer, for iii a formal Order of a few lines be dissolved the .suuuotlou. Tho anomaly was thus presented o: a corporation'being dcpihoi ol its property without tue right to iaice having ever boen adjudged by any legal tribunal. Before every tribunal iu 'vu;ci: tho ca?o Lud been heard, in every form iu which the ?suc could bo raUoJ, tho legal right had leeu presented ur.d u decision Of it earnestly usked, bu- in vjih:. Beforo Jndge Platt !t w-r said, Judge iioorcr wiil decide it, and Judge Platt ftas.ed th.- question by undecided. When tito cause came bclore Judge boozer, it wes said Judge : latt hui deeded it, ard Judge Looicr jiu.ply dissolved the injunc? tion without .i v-j,.? o Ijudioating tho right Belloving thut the South Lruolina Kuiircai Cciuoony oouid te deprived ol its property only by tuc judgment of a v.ourt determiniDg thc question of legal righi, tue weelo casa was : w~ by motion foi prohibition to tho Supreme Court, in order that that tribe?a!, ; joially empowered by the constitution to exercise " a general supervisory contioi ovci Bil lue Courts iu the State " aud whose decisions would be binding ULOU all subordinate (.carts, mi^bi decido all tuc questions at issue between the two companies, r....i determine oy legal ludgment the light? of each. The VIC-TI urged ou be!.ult vii tu? South Carolina Ru il rua I Company ?viii appear fron? tho following arguments. Pending the legal proceedings au oSort wa? made to terminote the litigation by reiorring all tho questions at us?? to ike urctttation of a oommittte composed of | turee directors of ;ompany ... correspondence upon the subject i- appen to its a:?.uu<ut? JAMES CONNER, .jot?nitor Smith Varnliiirt RailtxHtH Company, Us THE SUPREME COURT. iiEZ STATE EX RELATIONS TUE ?O?TH CAROIiTNA BAILBOAP COMPANY j.UL COLV^ILBIA ..;.i> AUGUSTA ti ii. UOMPANV ?GGESTI02? IX PiiOHJBiliu.; J AMBS CONNEP. and A. G. MAG-RATH, for Relators ?TjELTONj U?XMMINGER und CARROLL, fot I???'pO?ldt/l(? ARGUMENT or JAMES CONNER, OF COUNSEL FOR RELATORS . May it pleas? the Court : Before entering upon tho argument of tin? case, let US first oncleavor to ascertnin dourly what are the is?ucii ?L.v.;ivett. ' . ii is somewhat singular that in o litigation so protracted, and.which, . ... ' J-. I:.:;. ; .s been oe?'oPQ so ??aoy tiibii nal?, ?.?.:'e> shouici be any doubt or misapprehension as to the question to be decided by tho Court, Yot, there is probably no causo in which tho real question at issuo hu? boon a>S goneiull^ misunderstood. lt lina boen the raisfortuue-of our ollouts, per? haps, that thor havo not sought" by popular arts lo oducate nna Influence public opinion, but havo trusted too implicitly to the-corrective powers of the law, and rested too securely in the conviction that tboirbights wore to b?> determined by judicial tribunals, and not by t hat public opiniol^'BwA?s?ibo bar ol'which' tbov havo. been upon HO many charge? n?r>?f^uo4.' However willing on nil propor occasions to dolor to public opinion, wo cannot consent that it should settle questions ol legal right; thos?toJf?f^Dng to thc Co?iria, anti wo uro hero now to, stand or fall by taoltfirof tho^ajid. (p It i's alleged that, wo aro atteuipiing t/V provent the construe-^ tion of tho Columbia aud Augusta Pr.ilroad, and that our oppo? sition springs enth$yLy from thin cuuse. Wo havo no such objoet. We seek neither to> destroy tho road, priant .its completion, nor take from tho company ono singlo rights ol' way or othor privilege that belongs to thej?. \Vo do not-propose to inter? f?re with any legit^mMc action of their charter, but to simply say to them you musw'?fct and cannot act ii? excess of the powui yon have derived from the State. Our-.ctlort is to rc st rainy and koop the Columbia and Augusta Kuilt'oad within tho re? cognized limits of'its chartered authority; this and nothing; moro. In tho discussi*!? upon wbiob we ;iie ubojat to enter, i shall, avoid, as much as?ossible, ali debateable points, and endeavor to rest our case upon plain principies of law and upon iucts that oannot bo called in question. To narrow the subject down, therefore, I prooo3$ in tho outset to declare wlm'. wc concede. "Wo concedo tho right of the Columbia and Augusta Railroad to build a line from Columbia lo Augusta, to build it via Gran itcville. and lo connect Granitevillo and Hamburg; and there wo take om stand. We say that is the utmost extent of the right which by any declaration of a Court, or by any possible inference of law, bas been or can be granted, and beyond that you cannot go. You may build your road from Granitevillo to Hamburg, but you cannot build it on our land. Avoid our one hundred feet right of way-that little strip of land guaranteed to us under our charter, and vested iii us by the L?gislature, and you may build when, where and how you please. But they refuse to do even that. Here, may it pienso your Honors, i have conceded everything which is decided by the ease in 13th Richardson's Equity. In? deed, I have gone even beyond what can be legitimately referred to ns tho decision in that case; because it is there left opeu to doubt whether the company had a right to construct the road from Granitevillo to Hamburg. This dispose-- entirely of the plea ot* res adjudicato. It is utterly impossible that the question which I now make could havo been deeided in tho ease before the Court of Errors in 1867, or before thc Chancellor in .May or June of the same year. The dotiuito location of ibo route from Graniteville to Hamburg, as the Engineer states, was not made until June or July, 1SGS, while the decision of thc Chancellor on the circuit was made in June. 1S67, and tho decision of the Court of Errors in December following, lt was. therefore, D'sically impossible for thc Court to decido upon tb?, right to ld on our land, because no human tribunal knew where the road was to bo definitely located, and because it was not located until fully one year-after the decision of the Court had been announce i. 1? there, thou, anything uri roa son nb ic in thi, application we make, or in thc opposition we set up? Is it not, or. the con? trary, fair aud proper for tho South Carolina Railroad Company to concede to the Columbia and Augusta Railroad tho full limit of its chartered lights; but, ul the same lime, declare they shall not trespass upon us cv exceed that which has been legally given ; and when they attempt to do so interpose lor our pro? tection the law of tho Slate, and submit tho whole question to the judgment of the legal tribunals or* tho country? Vet for ti -ing this, we have been in every form arraigned and denouncod as Setting up factious opposition to a pu olio unturprUa. I Kow, vr?contend that it was-our.-right-movc than that, it was our duly LO bring these *quosti*^j?,-before the Courts, and j obtain their jadgment upon tl.-j.is *>. i;e Directors-'are trustees I of large and valuable p.ib'.ic it?terOSts; nrufTliey would have been recreant io their ciuiy l;?.d they permitted the company to bc deprived of ils rights by anything less than the judgment o: the Supremo Court of the Stute. Let us ascertain what are the rights of the parties in this vase. The South Carolina Railroad Company is in possession ol cer? tain lands, and a right of way granted by tho Sun \ with certain powers and privileges whiob, together, constitute tho property of the corporation. This is secured to them in the ranst express and exclusive terras. The. first section of thc charte:* of 1828 gives them the . exclusive right to make, keep up, and mc those railroad-^.' Thc ninth section gives thom tho power "to pur? chase and have and hold any lands along which to run and locate thc aforesaid road." These wx*rc the privileges of the Canal aaa Railroad Company, incorporated in 1827. Similar powers wore subsequently be? stowed on the Cincinnati; Louisville, und Charleston Railroad Company, by the Act ol lb35. (See Section- Ki. ?57 and '?H.) And these two roads were made one by the Act of 1843, under the fitlo of the South Carolina Railroad Company, ii which were merged aj? tho rights, privileges and property belonging to either. That is not only tho^impk-t of iJU?' Act of 1S43, but in Blakes case, 9th Richardson 4?>v:v, '-?32, thu Court expressly decided auch to bo the couslrucfip? of thc Statute. Judge" Willard-But subject to thc qualification, that the combined powers of"the two roads are noeexteuded over the whole Une. Between Columbia and Charleston they have all tho powers of one, and between Augusta uixl Charleston all the powers of the other road. That is all. Mr. Conner-1 submit, with great deference, mat your Honor is mistaken in the Oppenheim case, co whi?h you allude. Tho original line ol the Canal and Railroad Company was from Charleston to Augusta ; ii.* origiual line ol' tho,Louisville, Cin? cinnati, and Charleston i?.?iroacl was liv m br ./-.ch vii le to Colum? bia-consequently; if your Honor rs correcU'th? charter of the Louisville and Cincinnati Company would mot apply to any land in the City ol Charleston. The Court ra that case, how? ever, deemed il immaterial under which charier tho South Carolina Railroad Compauy proceeded , Had the point been determined, as your He^or supposes, it would havo relieved oui friends, on thc oilier siie^ of much em? barrassment, because n large portion of Choir argument, in the Court of Errors, turned upon thc question, W'hotter the united charter covered the whole road, or whether the first char Un? applied only to the Hamburg line, and the charter of 1835 to the Columbia line Such a decision was sough^but I ani not aware that it lias boen rendered i:i any easel i or my own part. 1 entertain a strong conviction thal tho uuif?d charter ap? plies to every foot of tho track. Tbl?, bowevoL is n question uside from the present issue. We are now dismissing the ex? clusive privileges attached to that portion of thq road between Granitevillo und Aiken, and to whit 1. c< rtaiuly Applies the Act of 1828. JNow. as tu the land and right ol way w bich U sought to be tnkon from us Ly the Columbia and Augusta Railroad Company, we show a statutory title. The Aot ot laoU. ID tho absonco ol specific contract, vests iu the company a title to one hundred feet on each side of the track t have already called your Honors' attention iq that clause which gives thc South Carolina Railroad Company Hbo right to purchase land necessary lor repairing, sustaining Sh d keeping up their road; KO that wo have readied thiiifpoift, that for everything which thc Columbia and Augusta Railroad Com? pany seek to ta ko from us, wo havo an absolute statutory title or u conveyance in lee, obtained under the Authority of thc charter. I desired to show in tho clearest manner how, from whom and by what tenor the rights we claim wore held; to exetnpiily the exclusive nature of tho grant, ?id thus lay the foundation of the argument 1 shall hereafter lutroduco. Iiis unnecessary, however, for your Honors to entertain any ques? tion of title, because tho proceedings from beginning to end admit the titio to be ia us. When tue opposite to?rty claim to condemn the land, under tho very terms of tl*' Act the}' tile their proceedings against the owner. So that, not only by act of law, but by the admission of the parties themselves, our title is indisputable, in fact their own title would be "ialuolcsfl, unless the precedent title was, in us. Now, we can onW oo divested ol that title by a paramount title, and we ask by vhat right aro we to be deprived of that which they concede to ie legitimately our own ? lt is scarcely necessary to cite authority, but 1 or a moment 1 call your attention to the language of his Honoij Judge Ward Jat^in del i vori n g tho o))inion of tho Court in tho caso of Blake. ?.<?^yn : . " If tho moro assertion \* to bo conclusivo, thou upon " sn.di assertion tho company might enter upon any lauds that (t a hjope of proritablo spcoulution would induce it to take." If ?thc companj-'rt assertion of right should not bc conclusive theri must hr . onie trial. This whole case, may it please thc Court, rests entirely upon that proposition, namely, that a party cannot, by tho mere as* se??ft?on. or thc manifestation of tho disposition to take, divest a vested right. Now, a corporation has no powers savo those given to it by the original charter, or by subsequent legislation. Whatever tho Columbia and Augusta Railroad Company claim from us, therefore, if,must be presumed, in a courthouse, they claim ac? cording to law. Wo call upon thom to show their authority. If the right exists in fact, they must have tho title. Let them then produce tho Act of Legislature which empowers that cor? poration to condemn and take our laud. Clearly, tito grant of authority iBnot in tho charter ; nor is thc proceeding here based on their ?hartor, but brought tudor a di tlc rent Act altogether. There is not only a concession in this fact, but wo have further ?onclusivo prool that when they made application to Judge Aldrich, at Edgoficld, and usket? for a condemnation of this property under "their charter, and ho refused on the ground that .they.had not the rights they claimed, no appeal was taken to thc .luprcmo Court. .>ai^?>3ge Willard-If Judge Aldrich had tho right to decide tkfry-:-~re not authorized to take this land, why had not Judge Platt a right to decide to ibo contrary ? Thc question in my mind is, where is jurisdiction lodged? "Mr. Conner-Your Honor not only anticipates my argument buttrpplies it lo a state of facts which I am not now diseu ?sing. My present object is to show that these partie-have no ti'ie under their charter. Judge Aldrich so ruled. Tho application to Judge Aldrich was under tho charter. The application to Judge Platt was under the Act of 1868. Now, as 1 said before, no appeal was taken from Judge Aldrich's opinion. What fol? lowed? Act No. 42 was passed, and under this they instituted new proceedings, abandoning all attempts tc corni .-mn the property, under their charter. On this basis the pending issac rests. Let us examine then present claim. It ;s alleged tnat undci thu statute of 1S68, No. 42, they can condemn the rights, privi? leges and franchises, exclusively vested in ua by Achi of thc Legislature, and appropriate them-to their own uso lt is not merely tho question of condemning and dedicating o> a palin use that which is private property, but it is a condemnation um! appropriation to their own uso of thal which is already dodi? at ed to public use. in other words, tho Legislature has taken prop? erty dedicated to public use, in the hand:; of A. and dedicated ii to the same public use in the hands ol' B lt is an exercise of ti much higher power than when under the law of eminent do? main private property is condemned to public use. This point is elaborated with great care and pressed with great earnest? ness in A case which settled the right o? u -Stale, hy virtue ol eminent^doniain. to condemn thc franchise of a corporation and vest itftstoiot in another corporation, bul in the public lisles to 6 Howard, p. GUS, West Iii ver Bridge vs. Dix. J udgeV Willard-My mind is, perhaps, slow in grasping y< in proposition. , Do 1 understand your argument to bc thai when u corporation seeks ti? condemn pvoperty under thc cnn. domain, ?nd endeavors to acquire that which is nol vested o\ the charter, the proper remedy is by prohibition ? Mr. Conner-Not altogether. Your Honor's suggestion np plies to the appropriateness of the remedy. VYhai 1 desire tc establish, ii rsi, is tlie rights of tho party j and secondly if th rights*niwe been violated, to dis. over the proper reme ? The proposition I am now urging is that there is n grea' difference between condemning private property to public usc or authorizing a corporation to condemn private property t . ; pubUu ?se, and appropriating to li lime which is a'.rea ls ii ja*, vd t? ? a Cl ic use in she baud S Oi A; OT, ir. Other words, train; ?erring the rights of one to thc bauds cf another. 'i hi<. question received careful attention in thc caso of th? West luver Bridge VS. Dix-: ? Howard, 53S. " lt i* argued,'' says Justice McLean, " that if tho State va -\ :,t ike -his bridge, it maj transfer it to other Individuals un lei .'the si.mc or a-d?llorent charter. This tho Sn tc cannot do. i .' woulu be in effect talcing thc property from A to convey it to B." And to the same effect is the decish n of Cnn.; Justice Shaw ii Boston Water Power Company vs. Bc .?ton and W< rccstcr I? ai I road Company. 1 American Railway Jases, p. 325. The authorities, therefore, aro to the point that it is an exl a ordinary exercise of tho power of eminent domain to take tho which is already appropriated to a public use. it is unnecessary, however, in tho line of argument 1 am p r. suing, t?? make any question a > to the righi ? ta Slate, by \ irtu ?of the power of eminent domain, to appropriate the property c 'ono corporation for the benefit of another. We lake our stan on lower ground. Conceding, for ibo sake of tho argumon even (he right ou the part of the State to take that which, b special grant, is the property of one person or corpora ?ion an vest it in some other person or corporation, our position is thu the Stale, in th? present instance, has not done so ; tba by no clear express manifestation of ber sovereign will, ba ribo given, to the Columbia and Augusta Railroad Cou pany the right to say to the South Carolina Railroad Compan, that which was vested in you by prior legislation :.? noi divested, and ali former grants are repealed. ii must be evident to your Honors that when a power L: ?'reat is claimed by a corporation, tho delegation ol' that powt bv the State ought not to rest on inference or impliculioi The parties must lay their band upon thc line and chapter whic coolers the authority. Has that been done thus far Previous to the passage of the Act of 1868, the chard i < every corporation provided the mode and means by which I nu ami "the right ol'way were to be condemned. But ouch chu. u was a law for itself and contained its owu conditions und iv ., huions ; the consequence, therefore, was In many insianceti ti inconsistency. The object of thc Act of IS68 was evidently i substitute for all these conflicting provisions a un?orm ai general rule of practice which should obtain throughout ,i State,, and be applicable to all of it.- corporations. J'he . ? ? preamble indicates its purpose, namely: "An Act i Jcclau manner by which tho ?anus or the right ol way i vcr ... of persons or corporations ?nay bo taken for lin cou it J ami uses of railways and other works of internal imprc . o". , ?. lt is unnecessary to cite-authorities io show your Houoi Li effect of a preamble upon thc body of an Aol in ca of d ' I interpretation, and lure is plainly .-et lorin tho singh . bjc sought to be accomplished. The Act itself simply regulates i practice in carrying out this intent; and there is not a soi iv m it which contain., a .irani to any corporation pat t, presen I future, ll is only when wo come to thu eighth section that ;. main object is for a moment abandoned, aud a new cierne sought to bc incorporated. li is hero alone that ihe argument ot the other side cnn v. Ii' I hey cannot show a ..lear right to divest uu cf our ) . ? pot' and vest it. in themselves by virtue of thia section, they cs . . do so at all, and ihe h. ; vestige of legal authority will bo sv. o ?away. Now. what !?? tho language used'? '. Thal m lnnd.3 right of way which have heretofore, or may hereafter be pi I cured for tho construction or use of any highway, shall bo i [sidered exempt from liability to condemnation, but thc righi j way over said land, and across or along such right ol; vyaj bo condemned for the construction of any other highway." j That is tho sum and substance ol' tho Aol No lund*or rig of way shall ho 'exempt from liability," but the sumo "may coudent ned.'' Practically it is nothing but tho affirmation i ; general legal principle. But when and how does it upy*; When tho Slate, who is tho arbiter; shall give to any purticu company that right, stbjeel to such limitations, as in ii r ju mont, may bo necessary to protect other corporations Up tho date of the Act of 1868, 1 apprehend that thu Court Errors of this State would havo held that rights gruuted e:.> sis ely and in express lei'ms to any corporation, could ? t divested by any tribuuul without impairing the obligation oi' l contract. The Act of 1868 declares that these rights of w ay shall : bc "exempt" from condemnation ; that they "may be c demned."' These parlies, however, seem to think that the meie assert that rights of way shall not be exempt from condemnation, titles them to the mo-sl extraordinary privileges, un i they ia tortured the language into a grunt of power winch peru them to divest our rights and vost them in themselves TJ I attempt tu make out thal winch, keeping strictly within the .established rulos of construction ,s uttorly beyond tho limite of human ingenuity. Why, may it pleaso your Ilonors, there is something monstrous in tho proposition that a mero gonoraJ denial is to bo oonstruod into a general grant of power in tho largest and most comprehensivo sense. That the Slate, who is tho guardian of tho publie weal, who has, under solemn sanctions und guarantees, vested oortuin rights, is ou a more affirmation that these rights sholl not be oxompt from condom nation, to pass into tho hands of a singlo corporation or indi vidual that which is already ii hereat in another. No tribunal hus sot in judgment und declared that tho nooosslty exists, but in tho placo of this it is insisted that there shall bc substituted tho Individual judgment ol a corporation, moved by self-interest, and looking solely lo solf-aggrandisement. I repeat, ls not such a proposition monstrous fr Yet youi Honors have to ostablish that proposition beforo tho rights of these defendants to take our property can bo maintained. If their view be correct, there is no check, no requirements, no limitation to be observed. It is not provided that evou tho necessity should bc established; and yet, according to tho doctrine laid down iu Blake's case, thc necessity must bo proved, tn tho injunction ease before auother branch of this tribunal, one of your Honors held " that porsous and corporations author ?zed to p.it Lu exercise ino extraordinary powers of tho eminent domain, should ?.-nier upon the lands ot others, either with their consent oi* under tho sanction "i a judicial act determining the rightful character and proper limitations of snob authority." t li the proposition ot tuc other gide ho true, neither ot these are necessary. Blake's case ami your Honors' opinion aro swept away, and the party acquires thu right simply by paying the value. Now, may it please life Coi.. , eau it bo maintained that under this sect ion of the Act of 18(>8, thc charleroi" tho Colum? bia and Augusta Railroad Conn-any, which merci}- prescribes tho terminus a quo, and terminus <?? quem, contains authority lo divest thc vested rights of another ut tho mere will of the -orpor?tion ; that a corporation chartered from here to another point can deflect from its course, for tho purpose of infringing I upon the rights of others, and that when it seeks io appro? priate, the only question will bo the quantum of compensation? Yet that actually and necessarily follows, from the construction of the eighth section, urged by"ti ese defendants. -More than that, so far as my observation of charters has ex tended, and I have cousultcd many on this point, in nearly every on? -here oro prescribed limitations upon the taking ol lund*, especially along highways The very charter of the Oolam bia ?ind Augusta Railroad Company provides that said company diall not obstruct the public road without constructing another equally good. Provisions >.f ; similar character aro iu the charter of every corporation with which I am acquainted. No such limitations or checks, however, aro contained in the Act oi ISG8, which '. the sole Cou .tain Authority lor our opponents, anti they accordingly ask us to iuppose that tho State has em* bodied thy idea in every charter, that each corporation-the interested party-may itself judge where it will run its line, and from whom it will lake what it needs; that thc rights of ali are ignored and tho benefit of lue corporation alone considered. W e contend thal no inch construction can be legitimately placed "] .. that section eight; that such power does not exist m the A< md cannot bo deduced Iron; ?ts language. ii;, we go a step further. There is nothing more clear than that grants to u corporation arc to be construed strictly; that wherever it ?j a question of doubt, strict construction is against the corporation, and Liberal con- ?ruction in favor of the public lu a leading cose in this country argued with great, ability, ana IK decision of which hus been rocoived with grout respect, I refer to \ ?.> Pennsylvania Railr< 1 Company io. (Juna! Commis ion er?. 21 Pun h., :??. thc Chief Justice s-uicl : "When a State tnt ans to clothe a corporate ?hotiy with a portion of her sovcr .hmsy, and to disarm herself to I hat extent of the power that ?cloagu VJ her, it i.- easy to say 60, that we will never believe t i ' be mount when it is not paid. In the .construction of a .u: . lo. L-i-i.i i.^abt IG io Lu MMolvod. and_cvorjf--*-?-<-_ which upriwga from doubt, is against tiie corporation. I: the iscfhlness of tho company wotDd bo increased by extending privileges, let tho Legislature ?see to it; but rememjjor that .e.hing but plaiu English words will do it.'' "?"??"?^..fc. j?mam^ Just there, may it please your Honors, we take our ?laud. .Vu say that when this company claims so high and sovereign power as to luke lands vested iu us, they must show that k galion o:'authority iu clear and unambiguous language, lt mist not be left to doubt, because whore doubt exists tho power does not. i:i the Bii.ghampton Bridge ?ase, p. 75, 3d Wallace, tho ipiuion declares thut "ingrams by tao publie nd hing passes by implication,'1 "if the charteris silent about a-power it ^ ?. duos not exist." There ia in this Act of iSOi no grant of power, no liiniu marked, r.o plaiu express term. ; nothing but negativo words maying thai proparty shall not he exempt aud may |>o oou II em lied. Tho lair 'and ?euaonablo interpretation IS that Ul? time u?;d marmor i;i which lt i ; to he condemned is reserved to tho Slate to be incorporated in such cuses as may hereafter ariso. ti' iliib were not so, tho Act would operate by implication as a .epoal of every charter heretofore grau ted, and a divestiture ul tho existing rights established under those charters. And tho law is clear that such rup eal by implication cannot obtain. lhere i-j a very full and precise statement of thc law and the Authorities upon this point inDwni'is on Statutes, p. ?33, uud I .ced do no more limn simply refer lo ii. in the ouse of Ruth? erford vs. the Greene Heirs, {2 Wheaton, 203,) the Chief J usticu <ays: " Whatever the legulalivo power may bc, its acts ought ??never to Le so construed as io subvert tho rights of property, .* unless its intention . o tu do shall be expressed in such terms "us to admit ci no doubt and lo chow a clear design to .effect the object- No general terms intended for prop torly to which ihuy ni?) bo fairly applicable, and not par . i c?larly applied by ihe Legislature, no silent implied and .'C >ustruciive r< peals ought ever to bose understood as to divest .. a vested right,'*' And in boston and L -weil Railroad Company vs. Sajcin and Loweil Railroad Company, 2 tiray, 1, Shaw, C. J., says: "Wi i.Ov porceivo" "any act oi tho government appropriating .any of the lights, franchises or privileges oi tue plaiutiii ' .. ; r ibo righi ol i;minenl domaiu. Tue characteristics pf . .;. n an appropriation aro well known and understood. It 4 must ppcur timi the government intend to exerciso this high "sovereign right by clear nod express terms or by uccossary 44 ?ni] licatiou, leaving no doul t ur uncertainty respecting suca .. intent." There was an elaborate examination by the Chief Justice ci thc powers of a Legislature and tho rights of a corporation, md his decision was, not that the Legislature could not ??rant, but hat ii had not granted; and n could only be by clear expressions .1 the legislative intent thul tho power olamicd could be con? ide . 1 ss grunted to, and rightfully exercised by, the corpo? ral ion. The imo J nd go. i.? the ease of the Boston Water Power mpa ly vs. Bostou ami Woroestor Railroad Corporation, 23 Pickering, 3G0, (American Railway cases, 3??,) after discussing the ri. ht f thu Legisluturu, auder tho eminent domaiu, come? IO t ho question whether tho Legislature have granted certain power. " lt is, therefore," he says, "a question bearing upon ??1 o presumed in tc ut ol' thu Legislature, lt may be i airly "argued that although there is uo limitation of the power'of the ' . c uni ration iu u rms, still, il inc Legislature had already ap j ropriated o portion of tho landJtyFiug between the termini to "another important public ifso, and especially if the construe .'lion contended for would wholly, or in a great degree, defeat .' such other important public ute, it is net to be presumed that " tho Legislature meant thu..', to extend the power, and so a "limituliou might bo engroited by necessary und reasonable "implication upon the generality of tho Aou * * * * * " Supposing boto to exi>t, both cannot stand toget her aud one "must supersede the oiher. And this shall net bo presumed "io be tho intent of tho Legislature, unless it appears by vs " press words or necessary implication, in this inspect also 14 tiiia case diifers from ibu case in (?ill and johnson. "There the canal and tho railroad must ueee.-^u-ily occupy "the same identical line, caca for a oublieuse; be>th could not .. stand together ; ano, therefore, it was ueeided lhat u lrauehibo .4 already granted should not bu considered us super-ouvd and ..takouuway by a ?ubscquouL legislative ucl, grunting powoi .4 lr. ?vii term?. 44 So, if a power wero given in torms to lay out a turnpike or