improved and improving condition of our country and our countrymen. And, therefore, railroads and locomotive steam-carsthe offspring, as they will also be the parents, of progressive improvement should not, in themselves, be considered as nuisances, although, in ages that are gone, they might have been so held, because they would have been comparatively useless, and, therefore, more mischievous. We know that a zealous and inconsiderate spirit of innovation and improvement requires the vigilance and restraint of both reason and law. We are fully aware, also, of the fact that, when such a spirit is abroad, private rights are in peculiar danger, unless sternly guarded by the judiciary; and we are not sure that such guardianship is not most needed in a government where whatever is popular is apt to prevail at first, and often at last, only because it is the tor populi.

This case has been, therefore, carefully and anxiously consid ered, under a full sense of its magnitude, and of all the responsibilities of an authoritative decision of it by this court. After thus considering it, upon all the facts presented, we are unanimously of the opinion that no cause has been sufficiently established for enjoining the use of the railroad in Louisville, as the chancellor did, altogether, or for enjoining even such use as had been made of it by the railroad company. We do not wish to be understood as deciding that we are satisfied that the use of the railway, as hitherto made, in Louisville, was not in any respect a nuisance. All we have decided, or intended to decide, is, that the facts upon which alone we have had to adjudicate in this case do not authorize the judicial deduction that a nuisance has been sufficiently proved. If it shall ever hereafter satisfactorily appear, upon other proof, that such use as that complained of by the appellees encroaches on any private right, or obstructs the reasonable use and enjoyment of the street, by any person who has an equal right to the use of it, we shall be ready to enjoin all such wrongful appropriation of the highway. The railroad company having made its answer a cross-bill, and prayed lor damages sustained by it, in consequence of the injunction, the chancellor, in his final decree, dismissed the cross-bill absolutely; and the appellant complains, also, of that decree.

The chancellor granted the injunction, without requiring any bond or other security. Whether this was proper or not, we need not now determine. But in this state of case, if, as may be presumed, in the absence of proof to the contrary, the ap pellees filed their bill, obtained the injunction, and prosecuted

the suit in good faith, believing that the railway, or the use made of it by the company, was a nuisance operating to their private injury, it is our opinion that they are not, according to any adjudged case or established principle of equity or law, responsible for damages. As they have never undertaken to pay any damages in the event of an ultimate dissolution of their injunction, it seems to us that they could now be made liable only for a malicious prosecution. And not only is there no satisfactory proof of any such vexatious or wanton motive, but we are inclined to think that, if there had been, a court of equity was not the appropriate forum for assessing the dangers to which the appellant would, in that event, be entitled. Whether, therefore, the chancellor had jurisdiction over the matter of the crossbill, or whether he had not, his decree dismissing the prayer in that bill for damages was, in our opinion, proper.

Wherefore, it is decreed by this court that the decree of the chancellor, dismissing the cross-bill, be affirmed; and that the decree perpetuating the injunction against the running of cars on the railway on Main street, between Sixth and Thirteenth cross-streets, in the city of Louisville, by the Lexington and Ohio railroad company, be, and the same is hereby, reversed; and that the cause be remanded, with instructions to dissolve the said injunction, and dismiss the original bill, with costs.

In West River Bridge Co. v. Dix, 6 How. (U. S.) 540, 543, and 547, respectively, the principal case is cited in support of these propositions: That in cases of the exercise of the right of eminent domain by state governments, compensation from the public generally prevails; that a corporation as a franchise, and all its powers as franchises, being property, may be taken for public use for a highway; that the public may for a public use condemn private property, whether owned by private persons or by corporations; and in Chicago, R. I. & P. R. R. Co. v. Joliet, 79 Ill. 43, to the point that a railroad passing through the street of a city, the cars thereon being drawn by steam power, is not per se a nuisance.

RIGHT OF EMINENT DOMAIN MAY BE EXERCISED tarough corporations or private individuals, as well as through the acts of officers of the government: Bloodgood v. Mohawk and Hudson R. R. Co., 31 Am. Dec. 313, note 372, 373, where the other cases in these reports on the subject of eminent domain are collected.

CITY LOTS, EASEMENTS AND SERVITUDES CONNECTED WITH.-Sale of land by a city is made subject to the public easement of right of passage over the highways laid out thereon: Stetson v. Faxon, 31 Am. Dec. 123.

CANAL IS A PUBLIC USE, although constructed and owned by a private corporation: Willyard v. Hamilton, 30 Am. Dec. 195, note 201, and cases cited therein.

REMEDY BY INJUNCTION IS APPLICABLE ONLY TO SPECIAL INJURIES, in vio lation of private right: Del. and Md. R. R. Co. v. Stump, 29 Am. Dec. 561.

In the case of Davis v. Mayor etc. of New York, 14 N. Y. 503, it was decided that the corporation of the city of New York was not, by virtue of its general power over the streets of the city, authorized to grant to an association of persons the right to construct and maintain a railroad in one of the streets for the transportation of passengers for private gain, and that a resolution of the common council granting such right was void. A majority of the judges concurred in holding the resolution in question void. But Denio, C. J., and Comstock, J., both of whom delivered opinions, seem to have reached their conclusions upon somewhat different grounds. The former judge argued that a railroad has no necessary relation to or connection with a common highway or street. That a railroad and a highway are separate and distinct agencies to facilitate traffic, differing from each other in many essential particulars. That the object of a highway or street is to afford an opportunity to pass on foot or with horses and carriages from one place to another, and that it is essential to the legal idea of such a road that it shall be common to all. That a railroad does not facilitate traveling on foot or on horseback, or with one's own carriages. That those who use a railroad for its proper purposes do not travel according to their own volition, but are transported by the proprietors of the road in their own vehicles. That the feature which most widely distinguishes a railroad from ordinary highways and streets is, that the former is a strict monopoly, entirely excluding all idea of competi tion. That while there may be rival roads, there can be no rivalry on the same road, and no more than one road can exist on Broadway without excluding altogether every other kind of traveling with carriages. That the carriages used on railroads are quite unlike the vehicles used on other roads, being large machines occupying the space which would be required for several carriages of any other kind, and containing passengers enough to fill a great many of the carriages used on other streets or roads. These points of differ ence the learned judge mentioned in order to explain the reason why, in his judgment, the establishing of such a road is not within the jurisdiction conferred upon the corporation of New York over the roads and streets in that city. While he admitted that the power of the corporation over this subject is necessarily very large, he did not think that the converting of a street or a part of a street into a new piece of machinery for transporting persons, with which the existence of a street has no natural or necessary connection, is at all within the purview of the charter and acts of the legislature conferring upon the corporation the power to lay out, open, alter, repair, amend, and regulate streets, lanes, alleys, and highways. He thought that if an existing street can be converted into a railroad, there is no reason why the corporation could not authorize the laying out of a railroad where at present no street exists. That if a railroad is to be considered as only an improved species of street, the corporation which can exercise the right of eminent domain in laying out new streets, might lawfully exercise that power in constructing a railroad whenever it might be considered that the public good would be promoted by it. Referring to the principal case he says: 'It has been laid down in the case in Kentucky that the laying a railroad in a street or highway is only a new and improved method of making use of the public easement over lands dedicated or appropriated, pursuant to law, for a street or highway.

. . But the difference between a highway in the country, or a street in a city or village, and the modern contrivance of transporting persons by railroad cars running upon a grooved iron track, is, in my judgment, radical in its nature, and is not capable of being subjected to the same legal rules." He maintained that the legislature had taken this view of the matter, for in

every case where it was considered necessary or proper to allow a highway or street to be used to any extent for the purpose of a railroad, the right had Seen conferred in express terms. In support of this statement he cited tho various acts of the legislature of New York relating to this subject, from the year 1826 down to 1854. He also cited in support of his general views on the subject, Fletcher v. Auburn and S. R. R. Co., 25 Wend. 462, and Trustees of Presbyterian Society v. Auburn and R. R. R. Co., 3 Hill, 567, in which it was held that the use of the land by the railroad company was wholly different from that public right of passage, to promote which highways were established. He considered those cases, if correctly decided, to be conclusive of the case under consideration. From these considerations, he concluded that the resolution of the common council granting to the defendants the right to lay down a railroad in Broadway, was without the scope of the powers of the corporation, and was wholly unauthorized and illegal.

Comstock, J., while agreeing in the conclusion of the chief justice as to the illegality and nullity of the resolution in question, said: "I am not able, however, to assent to his views in regard to the power of the common council ove the subject embraced in the resolution out of which the present controversy has arisen. I am confidently of opinion that the municipal government of New York may construct, or by a mere license authorize others to construct, an iron track in Broadway, adapted to vehicles of the kind used upon railroads, and that licenses may be granted to the owners of such vehicles, as other carriages are now licensed." The learned judge was of opinion that the idea of a corporate franchise or of a monopoly existing in favor of individuals or associations of individuals, has no necessary connection with a railroad. That railroads are physical improvements, and may or may not pos sess the characteristics of a monopoly or franchise, according to the conditions. ander which they are built and used. He considered it extremely plain, that if they constitute simply a feature of the public highway, and are open to the public use, they are not liable to objections of this character. He then proceeds to say: "The inquiry then next occurs, is there an absolute incompatibility between a highway and a railroad track laid upon it for the public use. This is not a question whether the track of a private corporation or of an association of persons can, under municipal or legislative authority, be rightfully laid in a public street without compensation to the owners of the soil, where that is owned by individuals. The course of judicial decision is certainly in favor of that right, upon the ground substantially that the public easement or highway is not destroyed or obstructed, but only ased according to a new and improved mode, although the iron track is not owned by the public, and the public can only use it by riding or conveying their property in the cars of those who are its owners. But this, I repeat, is Lot the question. Can a highway and a railroad track coexist and constitute one public easement, where no person or corporation can claim an exclusive right to use the track, and where all may use it under such regulations and licenses as the municipal government may provide? Of this I do not enter tain any doubt." In the case under consideration, however, he believed that, taking the whole ordinance together, and giving effect to it according to its terms and intention, it was nothing less than an abrogation by the common council of their powers and duties over and concerning the public streets, and a surrender of a considerable portion of those powers and duties into the hands of private individuals. This, he held, they could not do, and on this ground he joined with the majority of the court in declaring the ordinance in ancstion illegal and void.

PHILLIPS' DEVISEES V. BEALL.

[9 DANA, 1.]

THE WORD CHILDREN, IN A WILL, DOES NOT INCLUDE GRANDCHILDREN, unless such construction be necessary to carry out the intention of the testator. Such intention must be demonstrated by other words or circumstances.

CHANCERY appeal. The facts appear in the opinion.

Owsley, for the appellants.

Wickliffe, for the appellees.

By Court, MARSHALL, J. William Phillips devised to his wife slaves and personalty of considerable value, to be held by her during her life, and, at her death, to be "equally divided among her children, except Felix." It appears that, at the date of the will, two of the testator's sons, who were also sons of the devisee for life, were dead, leaving children; and the only question now presented for consideration is, whether these grandchildren of the devisee for life, who is since dead, are embraced in the devise to her "children," and have thus an interest in the remainder, which was to take effect at her death.

The word children certainly does not properly denote grandchildren. And although it is capable of being used, and is sometimes used, for that purpose, and with that effect, there can be no warrant for thus enlarging its ordinary known signification, in giving construction to a will, unless such enlargement be necessary to carry out the manifest intention of the testator; which intention, not being indicated by the mere use of the word " children," is of course to be demonstrated by other words or circumstances. It is said in 1 Roper on Legacies, 69, that this extended import of the word "children," used as descriptive of the persons to take under the will, is allowed in the two following cases only, viz.: first, from necessity, where the will would otherwise be inoperative; and, secondly, where the testator has shown, by other words, that he did not intend to use the term "children" in its proper or actual meaning, but in a more extended sense: and the authorities referred to seem to support the rule as thus laid down.

It is unnecessary, however, in the present case to define preeisely the circumstances which might be sufficient to give the nore extended signification to the term in question. It is clear hat something more is necessary besides the mere use of that term, and the fact that there are grandchildren who claim to be