Page:The Green Bag (1889–1914), Volume 20.pdf/392

 THE CHARLES RIVER BRIDGE CASE once begun; and it was so located that on the Charlestown end, the distance between the two bridges were only 260 feet, and on the Boston end 916 feet, the roads leading from the two bridges converging to within a distance of 26 feet. The distance to Charlestown by the old bridge was 3134 feet, by the new, 3243 feet. The new bridge was opened December 25, 1828; and the effect was seen at once in the alarmingly rapid diminution of traffic over the old bridge, whose toll fell, in the first six months of 1829, from $15,000 to $6500, as compared with the same period in 1828. It was quite apparent, therefore, that when the Warren Bridge should become a free bridge in 1834, the Charles River Bridge stock would be worth practically nothing. The damage to the interests of Harvard College would also be severe — first, by its loss of an annuity of $666.66 which had nearly 23 years more to run; second, by the decrease in the value of the Bridge stock owned by it; third, by the loss of the rever sionary right which was to remain in the College after the expiration of the old bridge charter, but which would become valueless when the Warren Bridge became a free bridge. The Charles River Bridge did not wait for the cpmpletion of the new bridge before taking action in the courts, but at once engaged as counsel two of the leading law yers of the State, Daniel Webster and Lemuel Shaw who proceeded to file a bill in equity June 17, 1828, in the Massachusetts Supreme Court, setting forth the new bridge as a nuisance and an injury to the exclusive rights of the old bridge, and asking for a preliminary injunction. It is interesting to note that this was one of the first equity suits in the State, based on nuisance; for the statute giving equity jurisdiction in such cases had only recently been passed (St. 1827 c 88). Up to that time, the only matters in equity cognizable by the Massachusetts Courts had been, mortgages and forfeitures under 8^1785022;

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trusts arising under deeds, wills or in the settlement of estates, and contracts in writing where specfic performance was claimed, under St. 1817, c 87; redemption of lands, under St. 1818, c 98 and St. 1821 c 85; bills for discovery and adjustments between freighters and other parties interested in the same subject matter, under St. 1818 c 122; bills for discovery and delivery of goods, etc. secreted, and bills of account between partners, etc., under St. 1823 c 140. Richard Fletcher and William C. Aylwin, who appeared for the Warren Bridge, vigorously opposed the issuance of any preliminary injunction and denied the court's jurisdiction. Chief Justice Isaac Parker (who had resigned as Professor in the Harvard Law School only a year and a half before) gave the opinion of the court (6 Pickering 376), holding that the Court had jurisdiction, but refusing to issue any preliminary injunction, and — what is surprising to modern lawyers — stating that the plain tiff's request for such an injunction prior to filing of an answer, .was something "novel," and almost as "startling " as the first appli cation for this kind of injunction in 1752 seemed to Lord • Hardwicke.1 The Chief Justice said that this kind of injunction was "but sparingly exercised, and only in cases which hardly admit of controversy "; and such conditions he did not find in this case. In order, however, to make it plain that the court had not considered the merits of the case,. he began his opinion by warning counsel. "We^think it will be unsafe for either party to found any hope or expectation of the final result of this bill upon the failure, of the present motion, for it will be seen that there was no occasion to go into the general merits of the case in order to discharge our present duty, and we have not thought our 1 In 1752 in an anonymous case, 2 Vesey 414, Lord Hardwicke summarily dismissed such an application for a preliminary injunction, "saying this was a most extraordinary attempt of which he never knew an in stance before."