PARKER, J. * The answer admits that defendants are about to erect a bridge at the place specified, and claims a right so to do under the authority of the legislature, and we must, therefore, proceed to inquire whether its erection will infringe the rights of the plaintiffs, and be the means of such injustice to them as should be prevented by a writ of injunction.

It is objected, on the part of the defendants, that the charter of the plaintiffs does not give them such limits that the erection of a proposed bridge, by the defendants, will interfere with their exclusive rights. It is said that by the terms of their charter the plaintiffs had no right to build a bridge anywhere, except between Bloody Point and Furbur's Ferry, and that, taking the title of the act, together with the section cited, all the exclusive rights of the plaintiffs, if they have any beyond the place occupied by their bridge, must be limited to Bloody Point on the one hand and Furbur's Ferry on the other; that if they have any claim of right above Furbur's Ferry, it can be only a right to preclude others from building a bridge, not to build one themselves, that this can not be a franchise, and that their exclusive limits can not extend beyond the limits in which they might erect a bridge. And if this be the true construction of the plaintiffs' rights, the defendants allege that they can accomplish all they are attempting to do without any violation of the rights or franchises of the plaintiffs. But we can not restrict the grant to the plaintiffs by the title and preamble of the act. If we find within the body of the act an express and unequivocal grant of powers and rights not mentioned in the title or preamble, we can not restrict the grant of those rights merely because the terms of such grant are more extensive than the terms of the title and preamble. 7 Pick. 455.

If the title had been an act to incorporate certain persons for the purpose of building a bridge at Fox Point, the place where the plaintiffs erected their bridge, and the act itself granted to the corporation, in explicit terms, the right to build between Walton's Point and Nanny's Island, the grant could not be construed to be of the right mentioned in the title alone.

The sixth section of the plaintiffs' charter gave them, in terms, the exclusive right of building and maintaining a bridge across the Piscataqua river, anywhere between Walton's Point and Nanny's Island; and there is, in this section, no reference to any other part of the charter by which this grant of power and right is to be restricted.

On the supposition that by the charter the plaintiffs were obliged to erect this bridge within the limits between Bloody Point and Furbur's Ferry, as specified in the third section, we see no reason, if the legislature may grant exclusive rights, to doubt their power to grant to the plaintiffs exclusive limits, connected with the grant of their bridge even beyond the limits in which their bridge must be erected.

Such right of exclusion might be essentially necessary to ensure the erection and maintenance of the bridge, notwithstanding the bridge itself might be required to be erected within smaller limits, or at a definite place and if so it was competent for the legislature to make

such a grant, attached to the grant of the bridge, if they might lawfully grant any exclusive limits.

It might, perhaps, admit of question whether the sixth section did not give the plaintiffs power to erect their bridge anywhere within. the exclusive limits designated in that section, but this is not material to the present case.

It is further contended that the plaintiffs' charter gave them only the exclusive right of selecting a site for their bridge within certain limits, and that, having made their selection and erected their bridge, the place of erection becomes thenceforth the only exclusive right which they can claim under their charter.

But we can not adopt this construction of the grant, not only because such are not the terms in which the grant is made, but because it is apparent that such construction would defeat the object which must have been in contemplation in procuring and making the grant of an exclusive right.

The charter of the plaintiffs, then, confers upon them by its terms the exclusive right of building and maintaining a bridge between Walton's Point and Nanny's Island, and it is conceded that these limits cover the whole ground upon which the defendants claim a right to erect their bridge.

The next question is whether this was a constitutional and valid grant.

The answer alleges that at the time of this grant one Levi Furbur had a right of ferry within those limits; that no compensation was provided for Furbur, and that the grant is unconstitutional and void.

That Furbur was in the occupation of a ferry at the time of the grant of the plaintiffs, which was within the exclusive limits granted to them, seems to be conceded. What his right was, or how it originated, does not appear.

There is nothing to show that his ferry was not set up by him without any authority.

On the supposition that he occupied under a grant, it is not to be inferred of course that the grant extended beyond the place he occupied.

If Furbur had had the grant of a ferry, generally, we should pause before holding that the legislature could not grant a bridge, or even another ferry, so near as to be consequentially injurious to him. Upon this subject different opinions have been entertained; and it may be well questioned whether the grantee of a ferry, or of a right to erect and maintain a bridge at a particular place without any terms of exclusion in the grant, can set up that right in avoidance of any other grant which is not directly injurious in its operation, but iniurious merely in its remote consequences by diverting travel and tolls. Callender v. Marsh, 1 Pick. 432.

It would seem to have been the understanding in this state, at least, that if the party intended to secure himself from competition of this character he must obtain a provision to that effect in his grant; and if no such provision is found, it may well be held that the grant was

taken with a reliance on the wisdom and discretion of the legislature to protect the grantee from injurious competition, by refusing to authorize any other enterprise of a similar character in the immediate vicinity, unless required by an imperious necessity; and with an assent on the part of the grantee that, whenever the legislature should deem it expedient, they might make other grants remotely affecting the former, so long as the right and privilege conferred by the terms of the grant were not infringed. But it is not important to settle that question here.

If it was shown that Furbur had an exclusive right of ferry within certain limits, we are not prepared to hold that the legislature might not lawfully grant a right to erect a bridge within those limits if the locus in quo occupied by him for his ferry was not taken, and he was left to the enjoyment of an exclusive right of ferry as before.

The erection of a bridge near his ferry might be consequentially injurious to him. It might deprive him of the profits of his ferry; and yet if his right of ferry was not infringed, how could the act be held to be unconstitutional?

The grant of an exclusive right of ferry is certainly not an exclusive right of all modes of transportation and conveyance.

Whatever Furbur's rights may have been, he does not appear to have complained of the erection of the plaintiffs' bridge; and whether they purchased his consent, or he abandoned his ferry without, the defendants are in no way connected with him, nor would the state, by an extinguishment of his right of ferry, gain a right to grant a bridge within the exclusive limits for a bridge already granted to the plaintiffs; although the legislature might perhaps for that reason grant another ferry at the same place.

It is further contended that the legislature which granted the charter of the plaintiffs' had no power to grant such an exclusive right, and that the act, therefore, so far as it purports to give exclusive limits, is void.

By the constitution of this state, full power and authority are given and granted to the general court "from time to time to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without, so as the same be not repugnant or contrary to this constitution, as they may judge for the benefit and welfare of the state," etc. N. H. Laws 7.

There is certainly no express provision of the constitution authorizing, in so many words, a grant of this character. It is equally certain that there is no express prohibition of such an act. "When," says Chief Justice Kent, "the people erect a single entire government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Everything is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people." Livingston v. Van Ingen, 9 Johns. 574.

It will not be necessary to resort to any principle so broad as this to show that the legislature may make a grant of this character.

The constitution nowhere gives the legislature, in terms, the power to make a grant of land, or a charter of incorporation, or to confer a right to make bridges, turnpikes or canals, but such power has always been exercised, and no one doubts the right to make such grants. Fletcher v. Peck, 6 Cranch 128..

If this is conceded, the legislature may certainly make exclusive grants.

They may grant land in fee-simple, and the grantee will have an exclusive right. "Cujus est solum ejus est usque ad coelum, et ad inferos"-and he has this to him, and his heirs and assigns forever. Nothing can well be imagined more exclusive than this.

They may grant a bridge across a navigable river. No one can justify such erection without a grant. But such grant is necessarily exclusive to a certain extent. So far as the structure itself extends, so far the right must be exclusive. No one will contend that a subsequent legislature could regard such grant as void, and for that reason authorize the building of another upon the same foundation, or one which should occupy a part of the space already in the possession of the grantee.

The legislature then has power to grant a right to build and maintain a bridge, and the right will be exclusive to the extent occupied by the bridge, which may be of greater or less dimensions, according

to the grant.

What limits the power of the legislature to the positions occupied by the wood and stone used in the construction of the work?

If the legislature may grant a right which will be exclusive to the extent of forty feet or sixty feet, or what number of feet or rods, shall we fix the limits of the power so that all beyond is void?

If it be necessary, in order to effect the object, that the grant should be exclusive to the usual width of the bridge, it may be equally necessary to the accomplishment of the purpose, that the limits should be still more extensive. It may be necessary to lay the foundation much broader. It may be necessary to erect works above and below for the preservation of the structure.

If the legislature may grant the right to build the bridge, and may grant exclusive power over space sufficient for its erection, because otherwise the grant could not be carried into effect, why may they not grant such power over space sufficient in other respects to insure its erection? Why may they not make a grant of such extent that the grantees will think the prospect of remuneration sufficient to induce them to undertake the work?

Again the legislature may undoubtedly grant with reference to the preservation of the bridge. Such is one of the objects in granting a toll. If they may grant powers and rights with a view to preserve it from floods, by the erection of works of security above or below; and if they may grant tolls in order to preserve it from decay, why

may they not extend the exclusive right so far that these tolls will furnish adequate means for keeping it in repair?

It is not our province to judge how extensive the grant to the plaintiffs ought to have been. It was said in the argument that the necessity of the act authorizing the defendants to erect a bridge is conclusively proved by the grant itself—that the court are not to inquire into that necessity. And so of the plaintiffs' exclusive limits-the necessity of their extent in order to effect the object was for the consideration of the legislature and not for us.

Charters with exclusive privileges have been repeatedly granted here and elsewhere. 9 Wheat. 97, note a. They have been deemed necessary to the promotion of enterprises of public utility, and have in many instances operated greatly to the convenience of the community, as the means of accomplishing public improvements which would not otherwise have been undertaken, or must have been delayed to a much later period.

The right to make such exclusive grants has been supported by some of the most eminent counsel in the United States, and has not been contested by others who would not have failed to deny it had it been deemed of a questionable character. It has received the sanction of some of the most learned tribunals in the Union, and we see no reason to doubt the soundness of the principle. Proprietors of Charles River Bridge v. Warren Bridge, 7 Pick. 393, 440, 448, 456, 465, 473, 476, 492, 519; Livingston v. Van Ingen, 9 Johns. 525, 551, 559, 563, 573, 584; Ogden v. Gibbons, 4 Johns. C. R. 150; 17 Johns. 488; Gibbons v. Ogden, 9 Wheat. 74, 143.

It has not been contended that there is anything in the provision of the constitution of the United States authorizing congress to regulate commerce, or in any act of congress which militates, in any degree, with the power of granting an exclusive right of building a bridge within the territory of a state, and there seems to be no ground for any such supposition. North River Steamboat Co. v. Livingston, Cowen 733, 754, 9 Wheat. 19, 203, 235; The People v. Babcock, II Wendell 590; 2 Peters S. C. R. 245.

It has been urged in the argument that if the legislature may grant exclusive rights of this character, a legislature opposed to manufactures, to internal improvements or to banking might grant a small cotton factory, with the exclusive right of manufacturing within the state, or a short railroad or a single bank, with exclusive privileges, and the public thus suffer great injury.

It will be in time to consider whether grants of such a character are within the constitutional exercise of the legislative power and whether they may or may not be avoided, when a case is presented to us in which it is apparent that a fraud must have been practiced in obtaining the grant, or the circumstances under which it was made show that it was merely colorable, and intended to effect other purposes than those which appear upon the face of it.

There is nothing in this case to lead to a supposition that this grant was not fairly obtained-that the public good did not require a grant