Oak Street 
 UNCLASSIFIED 
 
 ni’v.af XU* Uihriiry 
 
 P'K. ; 7 54 
 
 Washington, February 20 , 1830 . 
 
 Dear Sib : I have been instructed by the Board of Directors of the Chesapeake 
 and Ohio Canal Company, to engage you to draw out, for publication, the Argument 
 which you delivered, as our counsel, before Chancellor Bland, at Annapolis, during 
 the last Autumn, on the motion made, at the instance of the Chesapeake and Ohio 
 Canal Company, to dissolve the injunction which had been obtained at the suit of the 
 Baltimore and Ohio Rail-road Company, and by which the progress of the Chesapeake 
 and Ohio Canal was arrested at “The Point of Rocks,” in Maryland. 
 
 « The report which has gone abroad, and is now diligently circulated, to the preju- 
 
 y { dice of this company, that the survey about to be made, in compliance with the views 
 
 of the Chancellor of Maryland, was sought by the President and Directors of this com¬ 
 pany, gives an additional importance to the request which I had the honor verbally to 
 communicate to you sometime ago, and which it is now made my duty to repeat in a 
 more formal manner. 
 
 With great respect, I am, dear sir, yours truly, 
 
 C. F. MERCER, 
 
 President of the Chesapeake and Ohio Canal Company , 
 
 William Wirt, Esq. 
 
 \ ' _ 
 
 Washington, March 10 , 1830 . 
 
 Dear Sir : The request which you made of me, last month, on behalf of the Chesa¬ 
 peake and Ohio Canal Company, to draw out my Argument before the Chancellor of 
 Maryland, last Summer, on the motion to dissolve the injunction obtained against them 
 by the Baltimore and Ohio Rail-road Company, found me so closely and constantly en¬ 
 gaged with my duties in the Supreme Court, as to render it impossible for me to do 
 more than to make a rough sketch from my notes of the propositions which I endeavor¬ 
 ed to maintain in that argument. I have had no time to make a full developement of 
 my views, much less to attend to style. In truth, what I now hand you is very little 
 more than a rough copy of my original notes. It may still, however, answer the purpose 
 which you have in view, of shewing the grounds on which we sought and expected a 
 dissolution of the injunction, as well as those on which we rest the prior right of your 
 company to the choice of route along the left bank of the Potomac, and of shewing, also, 
 that the dilatory measures which keep the decision in suspense, were so far from hav¬ 
 ing been sought by us, which I understand to be the representation, that we deprecat¬ 
 ed and resisted those measures with all the earnestness, and by every argument and 
 consideration which we could suggest. 
 
 Yours, most respectfully, 
 
 WILLIAM WIRT 
 
 Charles F. Mercer, Esq. 
 
 President Chesapeake and Ohio Canal Company. 
 
IN THE HIGH COURT OF CHANCERY OF THE STATE 
 OF MARYLAND. 
 
 The Baltimore and Ohio Rail Road Company 
 
 vs. 
 
 The Chesapeake and Ohio Canal Company. 
 
 The charter of the Defendants, the Chesapeake and Ohio Canal 
 Company, was granted by the State of Virginia, on the 27th Janua¬ 
 ry, 1824—(See Appendix A.) 
 
 This grant was made to depend on the condition of its receiving 
 the assent of the State of Maryland, and of the Congress of the Unit¬ 
 ed States. It received the assent of the State of Maryland in De¬ 
 cember, 1824 ; and of Congress, on the third March, 1825. So far, 
 therefore, as the Canal was proposed to be conducted through the 
 territory within the jurisdiction of either of these sovereigns, the com¬ 
 pact became complete at the latter date—(See Appendix A.) 
 
 The object of the incorporation is announced in the preamble of 
 the charter : it was to construct “ a navigable canal from the tide 
 water of the river Potomac, in the District of Columbia, to the 
 moutli of Savage Creek, on the north branch of said river, and 
 extending, thence, across the Alleghany Mountain, to some convenient 
 point of the navigable waters of the river Ohio, or some of its tri¬ 
 butary streams, to be fed, through its course, on the east side of the 
 Mountain, by the river Potomac, and the streams which empty there¬ 
 in, and on the western side,” &c. 
 
 To enable the Company thus incorporated, to accomplish this ob¬ 
 ject, the 4th section of the act gives to “the President and Direc¬ 
 tors, and their successors, full power and authority to appoint, and, 
 at their pleasure, to dismiss, such engineer or engineers, and agent or 
 agents, as they may deem expedient, and to fix their compensation ; 
 and to agree with any person or persons, on behalf of the said Com¬ 
 pany, to cut canals, erect dams, open feeders, construct locks, and 
 perform such other works as they shall judge necessary or expedi¬ 
 ent, for completing the canal hereinbefore mentioned and de¬ 
 scribed.” 
 
 The 15th section, after reciting, that, “ whereas it is necessary for 
 the making of the said canal, locks, dams, ponds, feeders, and other 
 works, that a provision should be made for condemning a quantity of 
 land for the purpose,” proceeds to authorize the Company “ to agree 
 
 97321/' 
 
4 
 
 with the owners of any land, through which the said canal is intend¬ 
 ed to pass, for the purchase, or use and occupation thereof; and, in 
 case of disagreement, or in case the owner thereof shall be a feme 
 covert,” &c. it authorizes a jury to be summoned, to estimate the 
 damages, and, on payment thereof, it vests the Company with an es¬ 
 tate in perpetuity, in the land so condemned. 
 
 Various reports and surveys had been made and published under 
 the authority of Congress, and of the States of Virginia and Mary¬ 
 land, to demonstrate the practicability of such a canal as this charter 
 described; and their reports and surveys, with their explanatory 
 plats, invariably indicated the left bank of the Potomac as present¬ 
 ing the preferable route for the canal. (B.) 
 
 The Baltimore and Ohio Rail Road Company w r as called into ex¬ 
 istence by an act of the Legislature of Maryland, alone; which act 
 was passed at the December session of 1828 . 
 
 The Defendants having discovered that the Baltimore and Ohio Rail 
 Road Company, leading the route which was understood to have been 
 originally contemplated by them, had determined to come dow n to the 
 valley of the Potomac, and to take the left bank of'that river, and that, 
 with this view r , they were endeavoring to pre-occupy that bank by pur¬ 
 chasing up the land at all the narrow and difficult passes, and condemn¬ 
 ing it, by juries, where they could not acquire it by purchase ; and the 
 Defendants being further advised, that this was an unlawful invasion 
 of the 'prior right secured to them, not only by their direct charter, 
 but by the early charter of the Potomac Company, to all whose rights 
 they had succeeded, by assignment, applied to the Honorable John 
 Buchanan, the presiding Judge of the Court of Appeals of Mary¬ 
 land, and one of the Judges of the circuit in which these operations 
 were going on, to arrest them by injunction ; and an injunction, for 
 the purpose, was accordingly awarded by him, in Washington coun¬ 
 ty, in the State of Maryland. The bill there filed by these Defend¬ 
 ants, contains an exposition of the grounds on which they assert 
 this prior right, and they had hoped that the Rail Road Company 
 would have answered that bill, and brought this decisive question to 
 a speedy issue. Instead of answering this bill, however, the Rail Road 
 Company have applied to the Chancellor of Maryland for a similar 
 injunction against these Defendants, asserting their own prior right 
 to the choice of route, and praying for an injunction, until this 
 question of priority of l ight can be heard and determined. This 
 injunction has been awarded, and its effect is to to block up the 
 whole of the left bank of the Potomac against these Defendants, from 
 the Point of Rocks to Cumberland, and to render it impossible for 
 them to proceed in execution of their works, above the “ Point of 
 Rocks.” Their charter being limited, in point of time, it is impor¬ 
 tant for them to have the whole course open to their operations ; which, 
 according to the advanced state of the science of canal ling, can he 
 carried forward at different and distant points of their line, at one 
 and the same time. 
 
 These defendants having answered the bill on wlii^ch the injunction 
 is founded, now move that the injunction shall be dissolved. 
 
5 
 
 We insist that it ought to be dissolved, because the answer denies 
 the fundamental allegation of the bill, on which, its equity rests. The 
 injunction prohibits the defendants from acquiring, by purchase 
 or condemnation, certain lands along the margin of the Potomac, for 
 the passage of the canal. The bill alleges that the defendants claim 
 the right to acquire these lands for the passage of the canal, by an 
 asserted right of election, prior to that of the complainants; and the 
 bill denies that any such prior right exists, in behalf of the defend¬ 
 ants. The defendants, in their answer, meeting this allegation of the 
 bill, insist that this prior right does exist in their behalf, and they 
 place their authority to make these acquisitions by purchase and con¬ 
 demnation, on the precise basis of such, their prior right. The bill 
 and answer, therefore, are at issue on this precise question : and a 
 moment’s consideration will make it manifest, that the fate of the 
 injunction must depend on the decision of this question : for, if the 
 Chesapeake and Ohio Canal Company have, by law , the prior choice 
 of their own route, along the shores of the Potomac, it must be manifest 
 that no in junction, whose object it is to drive them from that choice, in 
 favor of any other corporation or individual, can correctly stand. 
 The existence of a prior and paramount choice of route, in favor 
 of the Chesapeake and Ohio Canal Company, from its very nature, 
 puts down all competition : for, to permit a competition to arise, and 
 to turn them aside from that choice, by an injunction, is to deny the 
 existence of a prior and paramount choice in their favor. The in¬ 
 junction which has been granted, on the allegation of the Bill, that 
 the defendants had no such prior right of election of their route, was 
 rightly granted, upon the assumption that they had no such prior 
 right: for, on this head, we admit, that, if the rights of these 
 corporations be equal in point of time ; if the sovereigns who creat¬ 
 ed them both, intended to start them, like race horses, on the same 
 field, so that whichever first reached the goal should win the prize; 
 or rather, intended to pit them, like gladiators, on the same arena , 
 to cut each others’ throats, and to contend for victory and life in 
 every blow—there is no controversy in the case. The race and the 
 battle must both be to the swiftest. But if, according to the an¬ 
 swer, the charter which called the Chesapeake and Ohio Canal Com¬ 
 pany into existence, gave them the prior right to the choice of route 
 for their canal, along the shores of the Potomac, it must be conceded, 
 and I do not understand it to be denied, that an injunction restrain¬ 
 ing them in the exercise of that choice, cannot be permitted to stand: 
 for, if the sovereigns who created this corporation have authorized 
 the Company to choose their route, by prior right, it cannot be com¬ 
 petent to any court, acting under the authority of these sovereigns, 
 or cither of them, to say that they shall not choose it. For this 
 would be the exercise of legislative, not of judicial power. It would 
 be a repeal, by judicial authority, of that prior right, which the char¬ 
 ter, emanating from legislative power, had conferred. Hence, I 
 conceive it to be manifest, that the whole controversy turns on the ex¬ 
 istence or non -existence of this prior right rtf choice, denied to the 
 
6 
 
 Chesapeake and Ohio Canal Company by the Bill, but asserted by 
 the answer. 
 
 There is not another question in the cause, which, in comparison 
 with the above, does not either become insignificant, or totally 
 vanish. Decide any other point in issue against the defendants, yet, 
 if this be in their favor, the injunction must be dissolved; because 
 the injunction denies the prior right of choice, by restraining it. 
 
 Let me illustrate the truth of this position. 
 
 Suppose every allegation of the Bill, which the complainants’ 
 counsel insist, constitutes the equity of the Bill, to be unimpeached 
 by the answer, to wit: 
 
 1. That the complainants are incorporated, and have complied 
 with all conditions necessary to give them a corporate existence. 
 
 2. That the charter gives them them a right to obtain lands on 
 doing certain things. 
 
 3. That they took the steps necessary to gain this right to the land 
 in controversy. 
 
 Suppose all this to be true ; yet, if there was resting, all the while, 
 upon these lands, a prior and paramount charge in favor of the de¬ 
 fendants, which could not be disturbed by these movements—that 
 prior and paramount title, still existing, would forbid the continuance 
 of this injunction, which operates to disturb and restrain it. It is 
 like the case of a second mortgagee who does every thing necessary 
 to perfect his right, so far as his own isolated claim is concerned, 
 but who still remains subject to the rights of a prior mortgagee. 
 These latter rights over-ride all that he has done, and leave these 
 acts of his matters of no consequence in relation to such prior 
 mortgagee. Let every other contested question in the case be decided 
 in favor of the complainants, if the question of prior,, paramount and 
 continuing election be decided in favor of the defendants, the injunc¬ 
 tion which impairs, and restrains, and strips them of the right, can¬ 
 not be maintained. This question, therefore, of prior right, meets 
 the court at every turn. If decided in favor of the defendants, the 
 injunction cannot stand ; if, against them, there is then an end to the 
 whole controversy, at least on this head. 
 
 I should proceed, at once, to show the existence of this prior right 
 of choice in favor of the defendants, but that we are met, at the thres¬ 
 hold, by the objection, that this question is not now proper for the 
 consideration of the Court, but must await the final hearing. Why 
 is it not proper for consideration, on the question to dissolve ? Be¬ 
 cause, we are told, that this court has decided, in the case of 
 Delaplane, &c. vs, Parker, &c. that, “ on motions of this kind, the 
 court is confined to the case as shewn by the bill, or rather to so 
 much of it as exhibits that foundation of equity whereon the injunc¬ 
 tion has been rested, and upon which, if at all, it must continue to 
 repose, and only so much of the answer is to be taken into considera¬ 
 tion as is responsive to the case as thus set forth by the bill. If the 
 materials of which that case is composed, be denied, the injunction 
 must be dissolved ; but if they arc admitted, or not denied, the in- 
 
7 
 
 junction must be continued ; and that, too, notwithstanding the 
 owner may have advanced matter in avoidance, which, if established 
 at the hearing, will be a ground for dissolving the injunction ; and, 
 also, be a complete bar to all the relief prayed for by the Bill.” 
 Without questioning the soundness of this principle, or insisting on its 
 true measure and meaning ; but admitting it in the utmost latitude of 
 the terms in which it is expressed, does it shut out the enquiry of 
 this prior right, on this motion to dissolve ? It is said that it does, 
 because this question of prior right forms no part of the material al¬ 
 legations on which the equity of the Bill rests ; but is new matter 
 in avoidance stated in the answer. The meaning of new matter in 
 avoidance, is, that it is something new in relation to the case made 
 by the bill—something not called for by the allegations of the bill— 
 not responsive , therefore, to any allegation of the bill. But if this 
 question of prior right be among the allegations of the bill, the 
 answer affirming it, is not the statement of new matter in avoidance, 
 but is responsive to the bill; and if it be not only among the allega¬ 
 tions of the bill, but be, also, an allegation material to the equity of 
 the bill; then the answer contradicting the bill, in this particular, 
 is responsive to it; and if the matter be vital to the equity of the 
 bill, the contradiction given to it by the answer, authorizes us to call 
 for a dissolution of the injunction, on the very principle of Delaplane 
 vs, Parker. 
 
 What is the fact with regard to the allegations of the bill ? Is 
 the question of prior right, on the part of the defendants, among 
 these allegations, and is it denied ? Not only is it among the allega¬ 
 tions of every one of these bills, and the right denied, but, in every 
 bill, the injunction is prayed only “ till the prior right claimed by 
 the defendant shall be decided.” [ See the bills , and their prayers, 
 which were here read and commented on by the counsel .] Jpp. C. 
 We see, then, that this question of prior right of the defendants is 
 distinctly brought forward by the bill, and is emphatically denied. 
 
 The answer, on the other hand, as distinctly and repeatedly asserts 
 the existence of this prior right, and rests the claims of the defend¬ 
 ants on it. It is, therefore, not new matter in avoidance of the alle- 
 tions of the bill; but is old matter, directly responsive to the allegations 
 of the bill. 
 
 Objection. —This allegation of the bill is only brought forward, 
 incidentally, in consequence of the complainants having, in the bill, 
 here introduced the subject of our bill in Washington county. 
 
 Answer. —It was their own choice to introduce that bill, and if 
 they had meant to make no other use of it, than to show that we had 
 obtained an injunction against them, for which this was to be the 
 retaliation, they might have stopped with the statement of that fact: 
 for this bill of their’s, in this Court , was no answer to our bill in 
 Washington county. They were not called upon here , therefore, to 
 deny the prior right, in answer to that bill; but having, for their own 
 purposes, introduced the subject, they felt the vital importance of 
 
s 
 
 denying it here : and they have denied it, as a substantial allegation 
 of this bill; and, having denied it, they have opened themselves to an 
 answer on the same point, and made an assertion of this prior right 
 responsive to the bill. The answer, then, on this point, is not new 
 matter in avoidance of the bill, but matter directly responsive to it. 
 Was it an allegation material to the equity of this bill ? I have 
 shown that it constitutes the very gist of the controversy : for, if my 
 own argument were inconclusive on this point, the very prayers of 
 their bill, in asking for the continuance of the injunction, only till the 
 prior right shall be decided , shows that they understood it to be the 
 very hinge of the dispute, and the terminus of the controversy; and 
 their prayer seems to admit, that, if this point shall be decided in our 
 favor, there is an end of their claim. Since, then, the answer insist¬ 
 ing on the prior right of the Chesapeake and Ohio Canal Company is, 
 in this particular, responsive to the bill, and since the allegation 
 which it thus contradicts, is vital to the equity of the bill, the case 
 of Delaplane vs. Parker becomes an authority in our favor ; and if 
 the question of the continuance of the injunction is to depend on the 
 mere averment of the bill, on the one hand, in a matter vital to its 
 equity, and the denial of the answer, on the other, on that very point, 
 the injunction, on that authority, must be dissolved. 
 
 Still, they say, that this question must be suspended till the 
 final hearing. Why ? Is it a question which calls for proof under a 
 commission ? Is it a disputed question of fact 9 to be settled by the 
 evidence of witnesses? No. It is a question of law—to be settled by 
 a reference to the laws, and which can be just as well settled now , 
 as at the final hearing. It depends solely on the charter of these 
 several corporations, whether the prior right exists or not. No 
 depositions can vary it in the slightest degree; because depositions 
 cannot vary the constructions of laws; and the question is precisely 
 the same now, and appeals to the very same tests, and must be 
 decidedby the very same standard, as it will, and must be decided on 
 the final hearing, and by no other standard. Why, then, defer the 
 decision ?—more especially since the prayers of the bills have put the 
 continuance of the injunctions solely on the decision of this very 
 question of prior right. 
 
 Among other arguments which have been urged in support of the 
 injunction, it is insisted by the counsel on the other side, that the 
 injunction ought to be continued until the final hearing, to give the 
 court an opportunity of ascertaining, by actual surveys, and evidence 
 taken on the ground, whether both works cannot be conducted along 
 the same bank of the Potomac: and, it is said by the counsel, that 
 the alleged incompatibility of the charter depends on this fact; a 
 fact which can be settled in no other way, than by the evidence of 
 surveys, reports and depositions, taken on the ground. Now, it is 
 to be observed, that the injunction which bars the operations of the 
 Chesapeake and Ohio Canal Company, runs down to the low water 
 mark of the Potomac , and extends from the “ Point of Rocks” to 
 “ Cumberlandso that, through that whole extent of country, so 
 
9 
 
 long as this injunction shall be permitted to stand, the defendants arc 
 effectually barred from performing a single, operation on that bank, 
 in advancement of the great national work committed to their care. 
 
 The position which the defendants hold themselves ready to make 
 good, is, that both under the charter of the Potomac Company, which 
 istheir’s, by assignment, and under their own charter, they have an 
 absolute right to carry their canal along the left bank of the Potomac, 
 and to choose their own route; that this was a right secured to them 
 by charter, and by the plighted faith of the sovereigns, who were 
 alone interested in it, before the complainants, as a corporate body, 
 came into existence; and they insist on being permitted to exercise 
 this right, without molestation or hindrance of any kind; and, surely, 
 if they can maintain this position, the right is undeniable. 
 
 On the other hand, the complainants, the junior company, insist on 
 injoining the senior corporation, until it can be ascertained whether 
 the junior company cannot conduct their road, also, along the same 
 bank. 
 
 But what authority has this, or any other Court, to incumber the 
 exercise of a chartered right, with a condition not found in the char¬ 
 ter ? Our prior charter gives us a certain right, unfettered with any 
 condition in favor of any corporation which might be subsequently 
 called into being by any one of those sovereigns who gave the first 
 charter. Our right, under our charter, being, then, unfettered with 
 any such condition, is it within the compass of judicial power, so to 
 fetter it ? Would it not be engrafting a new and substantive condition 
 on our charter; and is it competent to judicial power to do this ? 
 Would it not be an exertion of legislative, not of judicial power? 
 The injunction is directly in the teeth of our chartered rights. 
 Our charter says we may proceed along the left bank of the 
 Potomac : the injunction says we shall not, and the argument 
 which 1 am now answering, asks the court to continue this 
 obstruction, till it can be ascertained whether both we and the junior 
 company cannot get along on the same bank. The argument mis¬ 
 conceives the true point in debate, as raised by the pleadings : that 
 
 point is, which of the two companies has the prior choice of route ?_ 
 
 and the injunction was originally asked, only till this point could be 
 ascertained. How is this point to be ascertained ? Surely, by a com¬ 
 parison of the charters, only. If, on this comparison, it be ascertain¬ 
 ed, as we insist it will, that we have the prior right of choice, there 
 can be neither law, equity, nor reason, in disturbing its exercise, until 
 it can be seen whether the other party cannot get along, also ; if they 
 can get along, also, let them get along when and as they may; but 
 do not hinder us from getting along, according to our right, for the 
 purpose of making an enquiry, in which we have no concern. If we 
 have the prior and paramount right to proceed with our canal along 
 the left bank of the Potomac, and to choose our route according to our 
 judgment, what is it to us who else can get along after us ? The 
 surveys, therefore, which arc asked for, arc matters with which, we 
 have no manner of concern; and let these surveys result as they 
 
10 
 
 may, they will leave this question of prior right precisely where it 
 stands at this moment, and to be decided by precisely the same 
 tests. For, suppose the surveys to result in the ascertainment of the 
 fact, that by each works pursuing the respective route prescribed by 
 the report of the surveyors, both works may get along on the left 
 bank : is this court to decide that we shall take the route prescribed by 
 the report ? Is it possible to imagine that the court will take such a 
 liberty with our charter ? By our charter, we are to choose our own 
 route : where does the Court of Chancery of Maryland get the right to 
 choose it for us ? If a route is to be forced upon us, by the authority 
 of this court, are we not deprived of the important franchise secured 
 to us by our charter, of choosing our own route ? Would not such a 
 decree be a violation of our charter ? Would it not impair the obliga¬ 
 tion of our contract; and if the law of Maryland, which has created 
 the Rail Road Company, warrant such a decree, is not that law un¬ 
 constitutional, on the ground of its impairing the obligation of the pre¬ 
 existing contract, arising from the first charter ? 
 
 I can see no possible benefit which can arise from the proposed sur¬ 
 veys, in regard to the only question which is here in dispute. They 
 can give the court no facility in deciding a question which depends 
 solely on the construction of charters, and which must remain, after 
 all, to be decided by this sole criterion, let the surveys eventuate as 
 they may. Let us suppose the surveys which are now asked, to have 
 been made and returned; and to have ascertained that, by pursuing 
 given routes, both works may get along on the left bank. It is ad¬ 
 mitted that this is all that can be expected from them. Let me, then, 
 admit the fact to be already ascertained—-that both works can, by 
 pursuing given routes, get along on the left bank. Does not your 
 Honor see that the question presented by these pleadings still remains; 
 to wit, which has the choice of route : and do you not see that, after 
 all the delay which these survey will occasion, you will still be brought 
 back to the very question which now presents itself, and, in deciding 
 it, be forced on that construction of the charter which must be decid¬ 
 ed the same way after the reports, that it must be decided before 
 them. 
 
 Why, then, should we be delayed for years, by an order for these 
 surveys and reports, which, after all, and in any possible event , must 
 leave the question of right exactly where it stands now ? for no law¬ 
 yer will pretend that the construction of the charters can be affected 
 by these surveys and reports ; let them result in what they may, the 
 charters must be construed on their own face. 
 
 Our charter, the joint grant of three sovereigns, has assured us 
 that we shall have the right to occupy the left bank of the Potomac 
 with a canal, according to our own choice of route. Perceiving that 
 this would interfere with the prior rights of the Potomac Company, 
 they made provision for a transfer of the rights of that company, by 
 their own consent, and for their own advantage, and they have been 
 regularly transferred by their own consent, to the Chesapeake and 
 Ohio Canal Company. That rival, the only one in existence, being 
 
removed, our right to proceed along the left bank, according to our 
 own choice of route, became absolute: and it does seem to us to be 
 monstrous, that a court of one of the sovereigns from whom our char¬ 
 ter has proceeded, shall, on the motion, and in behalf of a newly creat¬ 
 ed company, created by one of the same sovereigns who gave us our 
 charter, debar us from the exercise of the right thus solemnly pledged 
 to us, until it shall be ascertained by surveys and reports, whether our 
 exercise of this right may not inteferewith the accommodation of the 
 new company. If this new company has the prior and paramount 
 right, let it be so decided at once. If they have not, it is to us perfect¬ 
 ly incomprehensible, how the existence of their posterior right can be 
 made to stand in the way of the exercise of ours. 
 
 If there be room only for one of the works, let that Company take 
 it which has the first right: if there be room for both, let that Com¬ 
 pany take the choice to whom the prior right of choice belongs. All 
 that we ask is a prompt decision of the right . 
 
 There is no consideration of law or of equity, and good conscience, 
 that can justify the inevitable delay of these extensive surveys and re¬ 
 ports, except the supposition of coeval and equal rights in both companies. 
 But to this, neither of them pretends. Each claims for itself, the 
 priority of right; and this question must sooner or later be met, and met 
 on a construction of the charters. Why, then, delay it ? The delay must 
 be manifestly prejudicial to that Company which has the prior right: 
 and why should this delay be inflicted, since the question is just as 
 ripe for decision now , as it can ever be; and, more especially, when 
 the decision of it is invited hy the very terms in which the injunction 
 was asked and granted : to wit —“ till the question of prior right can 
 be decided.” 
 
 The delay may be a very good ruse de guerre , on the part of that 
 Company, which is conscious of the infirmity of its title : it is a spe¬ 
 cies of stratagem, however, to which it can hardly he expected, that 
 a court of equity and good conscience will lend itself. Such a court 
 will readily collect the sense of the parties, as to their own rights, by 
 observing which of them it is that asks the delay, and which it is 
 that resists it. 
 
 We humbly insist that this is the time, and this the motion, on 
 which the question of prior right arises, and we do most earnestly 
 and respectfully pray that it may be now decided. 
 
 Objection. —It is said, again, (and this is another dilatory plea,) that 
 this prior right is a question of law, and to be decided only in & 
 court of law. 
 
 Answer. — 1 . Why, then, is it asked to be postponed till the final 
 hearing ? For if is to be decided by your Honor, at the final hear¬ 
 ing, is it not the Court of Chancery which is to decide it ?—and if it 
 be decided by this same court, at the final hearing, why shall it not 
 be decided now. 
 
 2. Is it proposed that you shall ask the opinion of the Court of 
 Appeals on this subject, pendente lite : if, by the laws of Maryland, 
 you have the power to ask it, why not ask it now ? Your decision of 
 
12 
 
 it the one way or the other, which will open the case to an appeal, is 
 the only mode in which you can ask the opinion of the Court of Ap¬ 
 peals ; and why not ask it now, in this mode ? 
 
 3. But again : The parties have not, in their bill, prayed a refer¬ 
 ence of this question, to a court of law. They have not asked that 
 we shall be enjoined, until the question can be decided at law . The 
 bill contemplates no such course of proceeding. It manifestly con¬ 
 templates, that this coart shall decide the question of law, and, we 
 presume, that it is competent to this court to decide every question 
 of legal right involved, incidentally, in the proceedings before them. 
 It is not a disputed fact , like a question of coterminous boundary, 
 wherejthe court might enjoin, till the fact should be tried at law, by a 
 jury. It is a question of the construction of charters—like the case 
 of Penn vs. Lord Baltimore, in the English Chancery : and as per¬ 
 fectly fit for this court, as for any other. The injunction is not ask¬ 
 ed, till the question can be tried at law . It is not granted, till the 
 question shall be tried at law , but until tlie coming in of the answer, 
 and notice to dissolve. Time enough has been already lost, by the 
 pending of the injunction $ and we would rather have a decision 
 against us now , on the construction of the charters , than to have this 
 question longer delayed. 
 
 Objection. —It is objected that we asked an injunction in Wash¬ 
 ington county, until the question of prior right should be decided; 
 but, in that suit, it is said we have taken no step to have the ques¬ 
 tion brought before a court of law. 
 
 Answer. —The bill in that case contemplates no reference of the 
 question to a court of law : on the contrary, it proposes to have the 
 question of prior right tested by the short process of an application 
 for an injunction, by the court to whom the bill was presented. But 
 what steps were we expected to take, in that case, to carry the ques¬ 
 tion to a court of law ? It is not a case for an issue of fact; for it is 
 a question of law, and not of fact. That the court of Washington 
 has not, before this time, pronounced on the question of right, is no 
 fault of ours, nor have the Defendants in that case, who are the com¬ 
 plainants here, answered that bill to this day, so as to bring the 
 question to a hearing. They have, therefore, by their own delay, 
 prevented that case from having received a decision upon the right 
 before this time. 
 
 Some obscure intimation was thrown out, as if your Honor was 
 expected to refuse to dissolve this injunction, till that was disposed of; 
 and as if the que stion of right was to be held in suspense here , 
 until decided there. There is no ground for such a suggestion, unless 
 the* opposite counsel suppose that this court is to take part with 
 them , in a war of injunctions against the court of Washington coun¬ 
 ty ; and to hold up this injunction, as a measure of belligerent retali¬ 
 ation on that court. This case is ripe |for dissolution , on the question of 
 prior right That case is not ripe for dissolution, by the delay of the De¬ 
 fendants to answer that bill . If that injunction ought to have been dis¬ 
 solved, it is their own fault that it has not been dissolved. Shall they 
 
take advantage of their own fault, then, to insist on a ; continuance of 
 the injunction here ? But what has this court to do with a proceeding 
 in a different tribunal ? This court has lull power to acton all cases 
 before it: its action is totally independent of the Court of Washing¬ 
 ton county. If this case be ripe for decision, on the motion to dis¬ 
 solve, this court has as ample powers to decide on the question of 
 the construction of these charters, as the court of Washington, 
 county. Why then wait for its construction ? Why wait for a move¬ 
 ment in the cause in Washington, which the complainants them¬ 
 selves have fail ed to mature for decision, when thiscase is ready, and 
 the power of the court ample to decide it. 
 
 I have thus, I think, cleared the cause of all obstructions to a de¬ 
 cision on the question of prior right. I have shewn that this ques¬ 
 tion does inevitably rise on this motion. That it is a question aris¬ 
 ing on the construction of the charter, before the court, and, there¬ 
 fore need not wait for surveys, reports and evidence, which cannot 
 change that construction either one way or the other : that it is a 
 question, so vital to the cause, that the whole controversy rests upon 
 it: that, if we have the prior right, the injunction ought to be dis¬ 
 solved—if not, it ought to be perpetuated. 
 
 To this question of prior right, I now proceed. Wc claim it on 
 two grounds— 
 
 1st. As assignees of all the property, rights, and privileges of the 
 Potomac Company, under their charter of 1784. (See Appendix D.) 
 
 2d. On the ground of the charter to the Chesapeake and Ohio Ca¬ 
 nal Company, itself. 
 
 1. As the assignees of all the property, rights, and privileges of the 
 Potomac Company, under their Charter of 1784. 
 
 These rights were transferred to us under the authority of the 13th 
 section of our Charter. The effect of the transfer is declared, in the 
 same section, to be this: “ And, thereupon, the charter of the said 
 Potomac Company shall be, and the same is hereby vacated and an¬ 
 nulled, and all the rights and powers thereby granted to the Potomac 
 Company shall be vested in the Company hereby incorporated” Now, if 
 the Potomac Company, by virtue of their charter of ’84, had right 
 and power to occupy, with a canal, the ground on the left hank of 
 the Potomac, that right belongs to us by the assignment of their 
 charter, and we take it, with relation, back to the date of their char¬ 
 ter—that is, the year 1784; and this injunction, which obstructs us in 
 the exercise of this right, ought to be dissolved. 
 
 This calls upon us to inquire, what were the rights and privileges 
 of the Potomac Company, as declared in their charter ? They arc 
 found in the 4th Section of that Jaw, “ to cut such canals, and erect 
 such locks, and perform such other works as they shall judge necessary, 
 for opening, improving, and extending the navigation of the said river, 
 above tide water, to the highest part of the North Branch to which 
 navigation can he extended, and carrying on the sam c, from place to 
 place, from time to lime , and upon such terms, and in such manner as 
 they shall think ft.” 
 
“To cut such canals, and erect such locks, and perform such 
 works as they shall think fit.” What limit is there here, either to 
 the number of canals, locks, or works which they may erect ? None 
 but such as may be prescribed by their own judgment , “ as they shall 
 judge necessary.” Suppose that they should think one canal only 
 necessary, and that along the whole margin of the river—is there 
 any thing in the charter to restrict them in this respect? Nothing. 
 The whole subject is referred , exclusively , to their judgment . Suppose 
 that, in experimenting on this subject, they should try one plan, and 
 find it to fail; is there any thing in the charter to tie them down 
 to their first selection, and prevent their changing it, and trying 
 some other? Nothing. The whole subject is still referred to their 
 sole judgment, and they are authorized to proceed, from time to time , 
 and in such manner as they shall think fit. 
 
 There were, for example, three modes of improving the navigation 
 of the river: 
 
 1. By sluices. 
 
 2. By dams and locks. 
 
 3. By continuous canal and still water navigation. 
 
 They had power to try the first: but suppose they find it to fail, 
 what is there to prevent them from trying the second ? And we learn, 
 from the reports, that they did this very thing, in part. And, if they 
 found both the first and the second to fail, what was there in the 
 charter to hinder them from trying the third ? Manifestly nothing. 
 The language of the charter is as broad as language can be: the in¬ 
 tention of the Legislature being to tie them down to no particular 
 mode, but to leave the whole subject to their own experience , observa¬ 
 tion , and judgment . It is very clear that, after the reports of the 
 various Engineers employed upon this subject, in 1820 and ’22, 
 (see Appendix B) had ascertained that a continuous canal was the 
 best mode, the Potomac Company would have resorted to this mode, 
 if their funds had enabled them to do so. Suppose they had done so, 
 and had been brought before a court of Maryland on a quo warranto , 
 the presenter alleging that they were confined It) the charter, to im¬ 
 proving the bed of the river, could the quo warranto have been sus¬ 
 tained ? Is there one word in the charier which restricts them to 
 the bed of the river? Not one. This notion is inferred from gen¬ 
 eral language, which does not sustain it; and such an inference could 
 never stand, on a quo warranto , against the clear, positive, and un¬ 
 limited terms in which their powers are described in the 4th Section. 
 
 Let us make this comparison. 
 
 The language of the section, standing alone, certainly commits the 
 whole subject of the manner to the judgment of the President and Di¬ 
 rectors. Is there any thing in the language of any other part of the act 
 to place a limit on the powers given by the 4th Section ? But, before I 
 proceed to comment on the passages relied on, as producing this effect, 
 it may be proper to remark, that all that the Legislature had in view, 
 in this charter, w as the accomplishment of one grand object—the ex¬ 
 tension of the water communication, by means of the Potomac and 
 
15 
 
 its tributary streams,from tide water, as high up as it could be carri¬ 
 ed. The Legislature did not propose to prescribe the manner of do¬ 
 ing this; they were in no situation to prescribe the manner; for it 
 required the aid of Engineers, of surveys, of comparisons, and of 
 calculations. The Legislature had no such lights to guide them. 
 All that they cared for was the accomplishment of the object: the man¬ 
 ner was entirely immaterial to them, and they have left it to the sole 
 judgment of the Company. They knew that, among other manners 
 of improving the navigation of the river, they might conclude to re¬ 
 sort to sluice navigation; and there are expressions in the law which 
 shew that they were aware that this manner might, and probably 
 would, be chosen by the Company. Upon the hijpothesis that this 
 manner might be chosen, the Legislature required and exacted that 
 canals should be made around the Great and Little Falls : points so 
 well known to them all, that they were aware of the impossibility of 
 overcoming the difficulties at those points, by the means of sluices. 
 They do not limit the number of canals which the Company may 
 make. They say, in effect, “ make as many of them as you please, but 
 we exact it of you, that, adopt what manner you may, you shall adopt 
 none which shall relieve you from the necessity of making canals, at 
 least around the Great and Little Falls.” And this is the only dic¬ 
 tation upon the subject of manner which is to be found in the whole 
 act; and can it be argued, with any fairness, that the Company were 
 at liberty to make no other canals than those two ? This was not the 
 contemporaneous exposition of the act, for they did make others, not 
 only without question, but the Legislature, as to some of them, sub¬ 
 sequently recognized the power, by giving directions as to the erec¬ 
 tion of toll-houses at them. The canal at the mouth of the Shenan¬ 
 doah, and that at Hook’s Falls, are of this description. Now, it might 
 be much more fairly argued, that the Legislature, by specifying the 
 canals at the Great and Little Falls, meant to prohibit the making of 
 all others, than has been argued, on general words, that the Le¬ 
 gislature meant to restrict the Company, in their improvement of the 
 navigation, to the bed of the river; and yet we see, in the instances 
 just specified, that no such restriction, on the number of canals, was 
 intended, from the specification of the two at the Great and Little 
 Falls. 
 
 Now, suppose that the Potomac Company had become convinced 
 of the folly of relying on sluice navigation, at the “ Point of Rocks,” 
 and other points along the river, where mountains run down to the 
 shore, and, by the continuation of their bases under the water, pro¬ 
 duce rocks and shallows ; and had determined to make canals at all 
 these places, what is there in the charter to prohibit them from doing 
 it ? Even if the charter had contemplated that they should adhere 
 to the bed of the river, generally, (which it does not,) still, it gives 
 them the power of leaving that bed, whenever, in their judgment, a 
 canal would be better . They might, then, have made canals at all the 
 difficult passes which the complainants, in this case, have attempted 
 to secure. Nor could any purchaser of the lands along these passes, 
 
It) 
 
 have bought these lands, discharged from this Jicn of the Potomac 
 Company; unless it can be successfully maintained, that, having 
 once selected sluice navigation, at these passes, they arc bound by 
 that first selection, and are forever debarred from correcting their 
 error, by a canal. But there is not one word in the charter which 
 favors this idea. The language of the 4th section clearly disproves 
 it. Nor can it be believed, that the Legislature, intent as they were, 
 on the accomplishment of the great object in view, have intended to 
 defeat it, by binding down the Company, in perpetuum, to every 
 faux pas they might commit, in experimenting on a work, then new 
 in our country. 
 
 But what is there in the charter to justify the inference, that the 
 Legislature meant to tie the Company down to the bed of the river, 
 and thus to narrow the general language of the 4th section ? To 
 maintain this proposition, the opposite counsel rely on the title, “An 
 Act for opening and extending the navigation of Potomac River 
 and, also, on the preamble, “Whereas the extension of the naviga¬ 
 tion of Potomac River” &c. This language is thought to be syno¬ 
 nymous with opening and extending the navigation of the bed of the 
 Potomac river, and to prohibit them from leaving that bed, except at 
 the points specified, the Great and Little Falls. But the inference is 
 wholly unwarranted : for this is the language used on all occasions, 
 even when the extension of the navigation of the river was to be 
 effected by opening canals. It is so used, repeatedly, in the law, and 
 the Legislature itself has thus fixed a clear meaning to the language. 
 So, in the preamble : the “ cutting canals," erecting locks, and other 
 works , are specified as among the acts which may become necessary 
 for improving the navigation of the river. So, also, in the 4th sec¬ 
 tion, “ cutting canals and erecting locks ” is again enumerated among 
 the means necessary for extending the navigation of the river. So, 
 in the 9th section, “ that, for and in consideration of the expenses 
 the said proprietors will be at, not only in cutting the said canals, 
 erecting locks, and other ivorks , for opening the different Falls of the 
 said river, and in improving and extending the navigation thereof." 
 So, in the 17th and 18th sections. The latter section closes with 
 these words : “ and in case the said Company shall not complete the 
 navigation, through and from the Great Falls, to tide-water, as afore¬ 
 said, within ten years after the said Company shall be formed, then 
 shall all interest of the said Company, and all preference in their 
 favor, as to the navigation and tolls at, through, and from the Great 
 Falls, to tide-water, be forfeited and cease.” Is it the bed of the 
 river that is meant here ? and was it intended that the navigation 
 should be carried through thebedof the same, at the Great Falls? 
 
 So, in the Maryland act of 1790, section G, “And be it enacted, 
 that the President and Directors of the said Company, for the time 
 being, may, from time to time, apply any part of the capital stock of 
 the said Company, and, also, the tolls, as they may arise, in opening, 
 improving, and extending the navigation of the branches of the said 
 river, above Seneca, provided that no such application shall be made, 
 
until the main river, from tide-water , is cleared to Fort Cumberland. 
 According to the mode of reasoning on the other side, this proviso 
 would demonstrate, that the main river, that is, its bed, was to be 
 cleared from tide-water to Fort Cumberland ; and the Great Falls, 
 of course, blown up with powder, or dislodged with crow-bars. 
 
 The act of 1784, section 17, is supposed to be decisive proof that 
 the Potomac Company were tied down to the bed of the river in their 
 improvements of its navigation. The last sentence of that section is 
 supposed to contain this proof. That sentence is in the following 
 words : “ That the tolls hereinbefore allowed to be demanded and 
 received, at the Great Falls, are granted, and shall be payable, on 
 condition only, that the said Potomac Company shall make the river 
 well capable of being navigated , in dry seasons, from Payne’s Falls to 
 the Great Falls, by vessels drawing one foot water; and from the 
 Great Falls to tide-water; and shall, at or near the Great Falfs, 
 make a cut, or canal, 25 feet wide, and four feet deep, with sufficient 
 locks, if necessary, each of 80 feet in length, 16 feet in breadth, and 
 capable of conveying vessels, or rafts, drawing four feet water at 
 least; and shall make, at or near the Little Falls, such canal and 
 locks, if necessary, as will be sufficient and proper to let vessels and 
 rafts, aforesaid, into tide-water, or render the said river navigable in 
 the natural course.” —(See Appendix D.) 
 
 In the first place it is fit to remark, that this section speaks, first, 
 of making the river capable of being navigated at dry seasons from 
 Payne’s Falls to the Great Falls, and from the Great Falls to tide¬ 
 water ; and, in the next place, that it distinctly presents the alter¬ 
 natives of making the river navigable by canals, and of making it 
 navigable in its natural course; clearly indicating, that making the 
 river navigable by a canal was making the river navigable in the 
 sense of the law. 
 
 We are asked whether, if the Potomac Company had resorted to a 
 continuous canal, they could have demanded tolls under this section, 
 the river being dry? To which I answer, that, if there were a navigable 
 canal along its shore, navigable in dry seasons, for vessels drawing 
 one foot water—that Company could demand tolls ; because, in the 
 clear sense of this law, the river Potomac is navigable, when a colla¬ 
 teral canal, fed by it, is navigable. On the opposite construction, tolls 
 could never be demanded under this section at all, because that con¬ 
 struction would require the Company to make the bed of the river navi¬ 
 gable through the Great Falls, as a pre-requisite to the demand of tolls ; 
 a thing impossible, in its nature ; and the Legislatures, themselves, 
 show that this was not their sense, by requiring a canal at the (Great 
 Falls. The whole argument is an attempt to deduce a defect of power 
 from a verbal hypercriticism, which is refuted by the act itself, in 
 every sentence. It ir needless to press this point farther, because 
 the Court must be satisfied, from the obvious sense of these laws, 
 that the river Potomac is made navigable, when it is effected# by ca¬ 
 nals along the shore of that river ; the great object being effected, it is 
 manifest that the Legislature did not mean to quarrel with the means. 
 
 2 
 
18 
 
 The location of the toll-houses, at the several falls, is supposed to 
 be inconsistent with the project of a continuous canal, and to prove 
 that the tolls were paid merely for the making of the canal. 
 
 What, then, was paid for deepening the bed of the river, where it 
 was deepened ? Nothing! No inference, in favor of the opposite con¬ 
 struction, can be fairly drawn from the location of the toll-houses. 
 They are placed, and naturally and properly placed, where the great¬ 
 est difficulties were to be encountered, and the greatest expense in¬ 
 curred. They are at the same points at which they would have been 
 placed, if a continuous canal had been adopted, l. Because those 
 would still have been the places of the greatest difficulty and ex¬ 
 pense. 2. Because, it being required to have a lock-keeper at those 
 points, there would be a saving of expense, in reducing the number of 
 officers, by making the keeper of the locks the gatherer of the tolls : 
 and, 3. Because, with regard to the boat-men, themselves, the tolls 
 can be more conveniently gathered while the boats are detained in 
 passing the locks, than to stop them for this purpose alone at any 
 other points. 
 
 The same thing is done at the New York canal, although that is a 
 continuous canal. The toll-houses are, there, at the falls and locks, 
 for the very reasons of economy and convenience, which have been 
 suggested. To infer, from a circumstance so natural and proper, in 
 all these respects, as the location of the toll-houses at the locks, or, 
 (what is the same thing,) at the Falls, that the Legislature intended 
 to confine the navigation to the bed of the river, and, by an inference 
 thus rashly and unwarrantably draw n, to restrain the plain language 
 of the section, in which the powers are given, by enumeration , would 
 be a species of construction, which w ould come recommended, at least,’ 
 by its novelty, to say nothing of its intrepidity. 
 
 Objection .—Continuous canals were then unknown ; they are a dis¬ 
 covery of the modern lights of science; and, therefore, connot be sup¬ 
 posed to ha Ve been within the contemplation of the Legislature in 
 1784. 
 
 Answer. —1. Continuous canals were not unknown ; there were se¬ 
 veral such in Europe, and in Asia, for many years before. Their 
 comparative superiority over other modes of improving the naviga¬ 
 tion of a river, was, perhaps, unknowm ; and this is all that the an¬ 
 swer, in this case, is understood to affirm. 
 
 2. It may be very true that a continuous canal was not specifically 
 wdtliin the contemplation of the Legislature in 1784. It may be ad¬ 
 mitted that sluice navigation, with occasional canals, w as supposed, 
 both by the Legislature, and individuals concerned, to be the man¬ 
 ner of improving the navigation of the Potomac which would be 
 adopted. But this is not the question. The question is, not what 
 the individuals who composed the Legislature supposed would be the 
 plan adopted ; but whether the charter ties down, and restricts, the 
 corporation to that plan. It is contended that it does not; butthat the 
 terms 6y which the powers are conveyed, are broad enough to enable 
 the corporation to avail themselves of all the lights which the pro- 
 
19 
 
 gress of science, and their own experience might, i from time to 
 time," shed upon this subject. Such is manifestly the language of 
 the 4th section ; and if the progress of science, and their own expe¬ 
 rience, should at last suggest the continuous canal as the best mode, 
 the charter is broad enough to authorize its adoption. 
 
 Objection —Were the lands, in the vicinity of the Potomac, to re¬ 
 main forever subject to this incumbrance ? Were the owners, and 
 those to whom they might alien them, to hold them always subject 
 to be cut through, at the pleasure of the Potomac Company l 
 
 Answer. —The objection supposes that the navigation of the Totomac 
 was an incumbrance, ajid a curse to the valley through which it passed*: 
 whereas, for more than half a century, it has been considered, by the 
 best and wisest men of our country, as among the greatest of public 
 and private blessings; and who can doubt that it has been so consi¬ 
 dered by all the owners of lands in the valley of the Potomac ? Which 
 among these persons would not, at any time, have compounded for 
 any supposed inconvenience, arising from this incumbrance , for the 
 great advantage of a perfect and permanent navigation of this river ? 
 And, if there were capricious individuals, who thought differently, 
 does not every man hold his land, throughout the whole United 
 States, subject to the same species of incumbrance, to wit : that it shall 
 be taken from him at a fair compensation whenever it shall be re¬ 
 quired for the public good ? 
 
 The original charter of the Potomac Company limited them to the 
 accomplishment of their, work in a given time. But thoSe who grant¬ 
 ed had the power to extend it, and did extend it; and so long as it 
 was extended and kept up, it continued the same powers as were at 
 first imparted.—(See Ap. D.) 
 
 Objection _If the Potomac Company ever had the power of cutting 
 
 a continuous canal,, they have forfeited it, by nonuser , for 44 years. 
 
 Answer .—This objection seems to proceed from a misapplication of a. 
 well-known principle, applicable to corporations. A corporation may 
 forfeit its entire charter , through nonuser of its franchises. But when, 
 by its charter, these franchises may be exercised in various alter¬ 
 native modes, which it may change at its pleasure, the experimental 
 trial of one mode, however long continued, has never been held a for¬ 
 feiture of the other modes, the charter itself remaining . If the 
 corporation lias been endeavoring to exercise its franchise in one or 
 more of these modes, there is no nonuser of the franchise which can 
 forfeit the charter: and the charter remaining, there can be no partial 
 forfeiture of any of the means of exercising those which still remain to be 
 tried, and exist under the charter. If there be any case which establishes 
 such a principle of partial forfeiture, we desire to see it. It is evi¬ 
 dent to us, that, if the charter remains, all the powers whicli it con¬ 
 fers must remain, and, if it has been forfeited, then the forfeiture must 
 be declared by a court of law, on a quo warranto . 
 
 Objection. —For the purpose of showing that the Legislature, in 
 granting the Potomac charter, did not contemplate a continuous ca¬ 
 nal, you arc requested to compare the language of the two charters— 
 
20 
 
 that to the Potomac Company, ami that to the Chesapeake and Ohio 
 Canal Company. 
 
 Answer. —The difference between the two charters is precisely that 
 which ought to have been expected from their relative objects. The 
 charter of the Chesapeake and Ohio Canal Company contemplated a 
 continuous canal, and no other work . The Potomac charter contem¬ 
 plated no specific work —it looked to the great object to be accom¬ 
 plished, leaving the mode of accomplishing it wholly to the Company. 
 That the language of two charters, thus differing in object, should dif¬ 
 fer in their language, is not at all wonderful; nor does it furnish any 
 inference against the powers of the Potomac Company. We never 
 contended that the charter of the Potomac Company contemplated a 
 continuous canal as the specific mode of improving the navigation of 
 the river . If we had so contended, we might well be called on to ac¬ 
 count for the difference of language between that charter and the 
 charter of the Chesapeake and Ohio Canal Company. But our po¬ 
 sition being, that the charter of the Potomac Company gives them a 
 general power to adopt amj mode which they thought best , while the 
 charter of the Chesapeake and Ohio Canal Company ties them down 
 to the single mode of a continuous canal , any difference in the language 
 of the two charters, in reference to this subject, must be wholly in¬ 
 conclusive in fair reasoning. 
 
 Objection. —The act of 1802, c. 84, p. 138, (of Maryland alone,) re¬ 
 cites in its preamble, that “ whereas the whole object of the Potomac 
 Company had been accomplished”—yet, there was no continuous ca¬ 
 nal ; and this proves that a continuous canal was not contemplated — 
 the whole object being declared to have been accomplished without it. 
 
 Answer. —It proves, what we have always admitted, that the great 
 desideratum was the extension of the navigation of the Potomac ; and 
 whether accomplished by the one or the other of the three modes that 
 have been mentioned, the object would have been equally accomplish¬ 
 ed, and the result equally satisfactory to the States. We have never 
 supposed that any specific mode was limited by the law. 
 
 Objection. —The charter of the Potomac Company was forfeited by 
 their non-execution of the work, within the time limited by their 
 charter. 
 
 Answer. —A charter which has once taken effect, can never be for¬ 
 feited but by the judgment of a court. The founders of lay corpora¬ 
 tions are the visitors. The States who granted the charter can 
 alone vacate it, by the judgment of their courts. Until they shall 
 have done so, no individual can treat it as forfeited, and act accord¬ 
 ingly. The States who granted the charter, and who had alone the 
 right to vist the corporation ; who had the exclusive right to sue out 
 a quo warranto , and to vacate the charter, have not taken this step. 
 On the contrary, those who alone could question the legal continu¬ 
 ance of the Company, have not only not questioned it, but have treat¬ 
 ed it as a subsisting company, with full subsisting rights. In the 
 charter to the Chesapeake and Ohio Canal Company, they have so 
 treated it. They have put the very creation of the new company on 
 
21 
 
 the condition that the Potomac Company shall consent to surrender 
 their charter to them. They have required of the new company, as 
 one of the fundamental laws of their charter, that they shall receive 
 the stock of the Potomac Company in payment of subscriptions to 
 the new stock, and that they shall receive the evidences of debt due 
 from the Potomac Company, in part subscription to the new stock. 
 They thus consider the Potomac Company as a subsisting Company 
 pre-occupying the ground by their prior and exclusive franchise, and de¬ 
 clare that it shall give way only on their voluntary surrender to the new 
 Company , and by becoming merged in the new Company, by the 
 transfer of their stock and debts to the new Company. While the 
 sovereigns, then, on whose pleasure alone the coiftinuance of the 
 charter of the Potomac Company depended thus treat it as in full 
 life, shall a private individual, or a private corporation, call upon a 
 Court in Maryland to regard it as a non-entity ? 
 
 I have thus considered every argument that has been urged: 
 
 1. To show that the Potomac Company were restricted to the 
 bed of the river. 
 
 2. To show that, if they ever had a right to have a continuous 
 canal, they have forfeited it by nonuser. 
 
 3. To show that the Company had forfeited its charter before the 
 present Company came into existence. 
 
 I think it has been shown that these objections are wholiy unten¬ 
 able. 
 
 That that Company was in full life until they surrendered their 
 charter to the Canal Company. 
 
 That, by the 4th section of that charter, all the means of extend¬ 
 ing the navigation of the Potomac were still open to them—unlimit¬ 
 ed, except by their own judgment. 
 
 That they had it, therefore, in their power, under their charter, to 
 have made a continuous canal, up to the time of the surrender of their 
 charter to the Chesapeake and Ohio Canal Company, on the 15th of 
 August 1828. 
 
 That, by this surrender, under the operation of the charter of the 
 Chesapeake and Ohio Canal Company, this power, possessed by the 
 Potomac Company, became eo instanti the power of the former 
 Company. 
 
 So that there was never a moment of time when the ground was 
 not prc-occupicd by the Potomac Company, or their assignees—the 
 Chesapeake and Ohio Canal Company. 
 
 The Chesapeake and Ohio Canal Company are thus the purchasers 
 of all the rights of the Potomac Company, for valuable consideration. 
 For valuable consideration— 
 
 1. Because they have taken their stock as a part of the new 
 capital. 
 
 2. Because they have assumed their debts, in receiving them in pay¬ 
 ment of subscriptions for stock in the new company. 
 
 The whole course of this transaction was open, public, and iiolori- 
 
22 
 
 ous. The several acts ot* 1824, establishing the Canal Company, 
 had given notice to the world that this transfer was to take place. 
 They had announced the conditions and considerations for which it 
 was to take place, and they had announced, by the same public acts, 
 that the legal consequence of this transfer would be, that the Chesapeake 
 and Ohio Canal Company would, thereby, stand seized’ of all the 
 property, rights , and privileges of the Potomac Company . 
 
 The Rail Road Company had thus fair notice of the whole course 
 of this proceeding, and of its consequences. 
 
 If they are correct in the position, that they commenced the acquisi¬ 
 tion of their titles on the Potomac, before the Chesapeake and Ohio 
 Company had a legal existence or legal rights, they encounter the 
 Potomac Company, which, it cannot be denied, had an existence long 
 before, and had all the legal rights which their charter then gave; 
 and since these legal rights continued down to the transfer, to the 
 Chesapeake and Ohio Company, there never was an instant when 
 the complainants could have gone upon the ground without meeting 
 the pre-emptive right of the Potomac Company, or of their assignees 
 and successors. As taking the place, therefore, of the Potomac Com¬ 
 pany, we claim the prior right of selecting our route along the shores 
 of the Potomac, and, being the prior right, it is one which the acts 
 relied on by the complainant cannot disturb. 
 
 II. We claim this prior right, as existing under the charter of the 
 Chesapeake and Ohio Canal Company itself, independent of the 
 derivative rights which it holds under the Potomac Company. 
 
 1. As a right created and existing in our behalf, prior to our incor¬ 
 poration, by the joint compact of Maryland, Virginia, and the 
 United States ; aright, in abeyance , ’till our incorporation ;J)«t even, 
 in that condition, placed beyond the power of recal by the act of any 
 one of the parties to the compact. 
 
 2. As a right which had actually attached, and become vested by 
 our incorporation, prior to any of the acts on which the complainants 
 rely as founding their inceptive rights. 
 
 1. The charter of the Chesapeake and Ohio Company was a 
 compact between the States of Maryland, Virginia, and the United 
 States, represented by the Congress and the President of the United 
 States. The various acts which confer this charter are not separate 
 and independent acts of legislation by these several sovereigns, but 
 they are, on their face, joint and dependent acts, resulting in a com¬ 
 pact flowing from the united consent of all. Virginia, for example, 
 does not legislate for herself, on the foundation of her own separate 
 sovereignty, and place the efficiency of the act on her own power. 
 On the contrary, she makes her act to depend on the concurrence of the 
 other sovereigns and parties concerned. The 1st section is, “ that so 
 soon as the Legislatures of Maryland and Pennsylvania, and the Con¬ 
 gress of the United States, shall assent to the provisions of this act, 
 and the Potomac Company shall have signified their assent to-the 
 same, by their corporate act,” &c. This act, then, was in the character 
 
23 
 
 of a proposition offered to the other Legislatures for their acceptance, 
 assent, and confirmation. It is so considered by the State of Mary¬ 
 land, who, after reciting the act, say “ Therefore, be it enacted by the 
 General Assembly of Maryland , That the said act of the General As¬ 
 sembly of Virginia he, and the same is hereby accepted , assented to , 
 and confirmed,” and thus ratify it on a condition introduced by them - 
 selves, that is, they introduced a new term into the proposed contract. 
 “ Be it further enacted and declared. That the said act of Virginia 
 has been accepted and confirmed by the Legislature of Maryland,'on 
 the express condition , that the act of Congress, contemplated by the 
 twenty-first section of the Virginia act, shall direct and provide some 
 safe and practicable mode whereby such lateral canal or canals may 
 he secured to the State of Maryland, and whereby, also, it may be 
 determined whether such lateral canal or canals will injure the said 
 Chesapeake and Ohio Canal, within the meaning and intention of the 
 said twenty-first section of the Virginia act.” 
 
 Then comes the assent of Congress to both acts. The title of this 
 act is “ An act confirming an act of the Legislature of Virginia, en¬ 
 titled ‘ An act incorporating the Chesapeake and Ohio Canal Com¬ 
 pany, and an act of the State of Maryland, confirming the same.” 
 
 Again, in the year 1826, the State of Maryland wishing to modify 
 the compact thus formed, but conscious that she could not do it, by 
 her single authority, made a proposition to that effect by an act to > 
 amend the act incorporating the Chesapeake and Ohio Canal Com¬ 
 pany. The first section of this act places the amendments which 
 it proposes on the express condition, “That this act receive, in like 
 manner, the assent of the necessary parties ” and the 4th section is in 
 these words, 66 And be it further enacted , That this act shall commence 
 and be in force as soon as it shall have received the assent of the Legis¬ 
 lature of Virginia, of the Congress of the United States, and of the 
 Potomac Company” 
 
 Then Virginia assents to the change, by her act of 26th February, 
 1827. 
 
 Congress, in like manner, gives its assent, by the 3d section of 
 of the act of 23d May, 1828. 
 
 And the Potomac Company gives its assent, by their resolutions of 
 the 10th July, 1828. 
 
 The State of Maryland proposed other modifications which were, 
 in like manner, put on the condition of their receiving the assent of 
 the other two parties: and they all did, in like manner, receive that 
 assent.—(See Appendix.) 
 
 It is, then, a compact , to which the States of Maryland and Vir¬ 
 ginia, the United States of America, and the Potomac Company, arc 
 all parties, each contributing a portion of its sovereignty and sepa¬ 
 rate rights, for the creation of a corporation for the common good 
 of the whole. It is not the creation of a monied corporation, like a 
 hank, for its own emolument. It is the creation of a corporation to 
 effect a great national object, for the good of the whole. What is 
 
24 
 
 that object ? It is answered in the Preamble. “ Whereas, a navi¬ 
 gable canal,” &c., and after describing its direction, &c. &c., conti¬ 
 nues, 66 will be a work of great profit and advantage to the People of 
 “ this State, and the neighboring States, and may, ultimately, tend to 
 “ establish a connected navigation between the Eastern and the West- 
 “ ern waters, so as to extend and multiply the means and facilites of 
 “ Internal commerce and personal intercourse between the two great 
 “ sections of the United States, and to interweave more closely all 
 “ the mutual interests and affections that are calculated to consoli- 
 « date and perpetuate the vital principles of Union,” &c., &c. [See 
 Preamble to the incorporating act of Virginia, passed January 27, 
 1824.] Here, then, is a great common object to be accomplished by 
 the common consent of all the sovereigns interested—to be accom¬ 
 plished by means, which neither separately possessed ; by means of 
 the river Potomac, which neither separately possessed : but which was 
 the common property of Maryland and Virginia, so far as it divided 
 their territory, and of the United States, so far as it constituted a 
 part of the District of Columbia. Neither of these parties could, by 
 its single authority, authorize a dam to be constructed across the Po¬ 
 tomac, for the purpose of supplying a feeder to the canal, without 
 committing a trespass on the other. 
 
 Again : It was not certain at the date of the charter of 1824, whether 
 the canal would run on one side or the other of the river, or whether it 
 might not be most advantageous, to cross, occasionally, on aqueducts, 
 and to use both sides. To give the canal every advantage, it requir¬ 
 ed the use of both sides, at the discretion of the Company, under the 
 advice of their Engineers : hence the concurrence of both the States 
 was necessary to give to the object all the advantages contemplated. 
 But neither Maryland nor Virginia could run the canal into the 
 District of Columbia; hence it was necessary to have the concur¬ 
 rence of Congress; nor could those States make a compact except 
 under the sanction of Congress ; hence, also, it was necessary to call 
 for that sanction. 
 
 But as one State might, by its Legislature or its Courts,- disturb the 
 action of the institution, it became necessary for the stability of the 
 enterprize to place it beyond the power of recall, at the pleasure of 
 any one of the parties to it: hence it was made to assume the form 
 of a compact , irrevocable, except by the consent of all the parties to 
 it. That it is a compact , is demonstrable by every test that can be 
 applied to it. The parties mutually consulted each other at every 
 step. Every measure was in the form of a proposition, and was, upon 
 its face, to have no effect till assented to by the other parties: and 
 the charter is now the result of mutual consultation, mutual conces¬ 
 sion, and mutual agreement, for an object of mutual good. 
 
 What is a compact ? What definition can be applied to it, that 
 will not fit this case ? Is it the agreement of two or more minds in 
 an object of common interest, which is to be done, or forborne, and 
 which can be done or forborne only in virtue of such agreement? 
 
25 
 
 Every feature occurs in this case; the object, is one of common in¬ 
 terest, could be accomplished only by an act of all : a mutual consi« 
 deration is paid by each for the mutual advantages gained by each . 
 Maryland and Virginia impart to the corporation to be created va¬ 
 luable portions of their eminent domain, to wit^ 
 
 The right to use the waters of the river: 
 
 The right to use the individual property on both sides of the river 
 as the necessities of the canal might require: 
 
 The right of exacting tolls on the one side, and on the other : and 
 in consideration of the advantage to be derived from the canal by 
 those mutual concessions of the States, Congress grant to botli the 
 right to run lateral canals, from the main stem, through any part of 
 the District of Columbia. And the Potomac Company surrender 
 their charter to the new Company in consideration of the advantages 
 which they were to derive from their participation in its profits. 
 Thus, as between the two States, the United States and the Potomac 
 Company, the charter is an executory compact, founded on mutual 
 consent, and on valuable consideration, paid all around; and from the 
 circumstance of its being a compact, these consequences result: 
 
 1st. That it is irrevocable, except by the consent of all the con¬ 
 tracting parties. 
 
 2d. That no one State can, by any subsequent grant to another, in 
 the slightest degree narrow or interfere with the rights granted by 
 that compact. For to say that any one State can do this, would be 
 to say, that any one party to a compact may depart from it at plea¬ 
 sure : It would be a partial revocation to narrow our right, granted 
 by the previous charter; and a power to revoke, partially, is a power 
 to revoke in toto. 
 
 Objection .—This charter is not a compact—nothing more than a 
 permission being given, by these sovereigns, to pass through their res¬ 
 pective territories. 
 
 Answer. —1. This is changing the terms, without changing the 
 substance of the proposition. For, if these permissions, granted by 
 these several sovereigns, were reciprocally the consideration for each 
 other, it is as much a matter of compact, so far, as if the compact 
 were more comprehensive. 
 
 2. But it is not a mere permission to pass through; it is a permis¬ 
 sion to pass through clothed with various attributes of imparted so¬ 
 vereignty ; it subjects the lands through which they may determine 
 to pass, to compulsive acquisition for the use of the canal; it gives 
 them the power of collecting tolls, for passage, within the respective 
 territories of these sovereigns ; it declares the franchise real proper¬ 
 ty, and exempts it from taxation in all time to come. This is not a 
 mere permission to pass ; it is a right of passage, clothed with great 
 and valuable privileges ; it is a right to pass along the shores of the 
 Potomac, and appropriate to the use of the canal the waters of that 
 river, and all its tributary streams, together with a right of compul¬ 
 sive acquisition of the soil; and all this as a matter of compact 
 
26 
 
 among the sovereigns, and as a matter of compact wholly irrevoca¬ 
 ble, in part or in whole, by any one of the parties to it. 
 
 Will it be said that this was not a compact, because there were no 
 negociations, and nothing in treaty form, between these sovereigns ? 
 This would be to al^ge that a State cannot contract by its laws. But 
 that a State may so contract, has been established in an infinite num¬ 
 ber of cases. # 
 
 In Hunter vs. Fairfax, the State of Virginia did contract, in the 
 form of a law, on the subject of the Northern Neck. 
 
 The State of Georgia contracted, in the form of a law, in the Ya¬ 
 zoo case of Fletcher vs. Peck, 6 Cranch, 87. 
 
 The State of Virginia and Kentucky contracted, in the form of a 
 law, by the compact of 1789, as recognized in the case of Green vs. 
 Biddle, 8 Wheaton, p. 1; and that a charter is a compact, though in 
 the form of a law, is recognized and admitted by the Supreme Court 
 in the case of Dartmouth College vs. Woodward, in 4 Wheaton, 518* 
 and arguendo in the cases of Jewett vs. Taylor, 9 Cranch, 43, and 
 the town of Pawlet vs. Clarke, 9 Cranch, 292. 
 
 We contend, therefore, that the charter of the Chesapeake and Ohio 
 Canal Company is a compact among these sovereigns, and that, there¬ 
 fore, whatever rights it does grant, are unalterable by the act of any 
 one of these sovereigns. 
 
 Let us now proceed to inquire whether this charter granted a prior 
 right which was in full force at the time that the acts were done, on 
 which the complainants rest their prior right. 
 
 I contend— 
 
 1. That, as soon as the charter of the Chesapeake and Ohio Canal 
 Company took effect, in the year 1824, and prior to the organization 
 of the Chesapeake and Ohio Canal Company, there was a prior right 
 to choose their route, created in behalf of the company, when it should 
 come into existence ; which prior*right was irrevocable by the act of 
 any one of the sovereigns. 
 
 That this prior right existed, independent of any acts to carry it 
 into effect. 
 
 *That this right, though in abeyance (to use a technical term) till 
 the company was formed, was beyond recall, and could not be invad¬ 
 ed by either of the sovereigns, or by any grant of cither of them, to 
 any other company or individual. 
 
 That this was a subsisting right, down to the organization of the 
 company, and that, on the instant they became a corporation, by the 
 subscription of the capital, it became a vested right, with relation 
 back, in point of time, to the date of the charter ; and that all inter¬ 
 vening and interfering claims must give way to this prior right. 
 
 2. I contend that, if it were necessary that the Chesapeake and 
 Ohio Canal Company should have come into corporate existence before 
 this prior right could arise in their behalf, they did come into corpo¬ 
 rate existence, and, consequently, this prior right did arise before any 
 of these acts were done by the complainants, on which they rely as 
 
27 
 
 giving them the preference of route ; and that the answer, in averring 
 this fact, is responsive to the bill in a matter of fact, and must there¬ 
 fore be taken as true. 
 
 I shall contend that this right existed independent of any acts to 
 carry it into execution, such as location, contracts ..with the owners of 
 lands, or writs of ad quod damnum . 
 
 That if a location were necessary to designate the choice of route, 
 in order to constitute a prior and exclusive right, such a location was 
 made, and was known to the complainants before they commenced 
 their operations of location, purchase, and inquisition. 
 
 1. By the charter itself, and before the organization of the com¬ 
 pany, a prior right to the choice of route was granted, which was in 
 abeyance, but irrevocable till the formation of the company, but which 
 attached at the instant of their formation, and excluded all interven¬ 
 ing and interfering claims. 
 
 To present this point clearly to the Court, let us suppose that, in 
 1825, when, by the consent of all the parties to this compact, the 
 charter became complete, there had been a corporation in existence to 
 take the rights given by the charter ; and let us inquire what rights 
 they would have taken by it ? These rights are to be ascertained: 
 
 1. By the preamble which explains the object of the charter. 
 
 2. By the 4th section, which enumerates the powers of the intended 
 corporation. 
 
 3. By the 15th and 19th sections, which authorizes the compulsive 
 right of passage for the canal. 
 
 ]. The preamble sets out the object of the charter ; the construction 
 of a continuous canal from tide water of the river Potomac, in the 
 District of Columbia, to the mouth of Savage Creek, &e. ii tobe fed , in 
 its course on the east side of the mountain, by the river Potomac and the 
 streams which empty therein This is the work which was contem¬ 
 plated ; and its location was required to be such as that it might be 
 fed by the river Potomac and the streams which empty therein. The 
 valley of the Potomac is, therefore, indicated, by the charter itself, as 
 being the bed of the intended canal. 
 
 The powers necessary to effect this object, are given by the 4th, 
 15th, and 19th sections of the law. 1 am now supposing, for the sake 
 of argument, the company in existence at the date of the act; and it 
 is manifest that they would have taken immediately the powers there¬ 
 in enumerated. What are these powers ? 
 
 The 4th section gives them the power ( a present power on the sup¬ 
 position that the company was then in existence) to cut canals, erect 
 dams, open feeders, construct locks, and perform such other works 
 as they shall judge necessary and expedient for completing the canal 
 hereinbefore mentioned and described. 
 
 The 15th section opens thus : ‘‘And whereas it is necessary for the 
 making of the said canal, locks, dams, ponds, feeders, and other 
 works, that a provision should be made for condemning a quantity of 
 land for the purpose, Be it enacted , That it shall, and may be lawful, 
 
28 
 
 for the said President and Directors, &c. to agree with the owners of 
 any land through which the said canal is intended to pass,”&c.; and, 
 in case of disagreement, it authorizes the company to proceed, by a 
 writ of ad quod damnum , to condemn ; and declares that, on the pay* 
 ment of such valuation, the company shall be seized of such land as 
 of an absolute estate in perpetuity. 
 
 The 19 th section provides if that whenever it shall become neces¬ 
 sary to subject the lands of any individual to the purposes provided 
 for in this act, and their consent cannot be obtained, it shall be law¬ 
 ful for the company to enter upon such lands, and proceed to the exe¬ 
 cution of such works, as may be requisite; and that the pendency of 
 any proceedings, in any suit in the nature of a writ of ad quod damnum, 
 or any other proceedings , shall not hinder or delay the progress of the 
 work.” 
 
 Now, is it not manifest that the route of the canal was, by these 
 sections, committed to the choice of the Company, in the then exist - 
 ing state of things ? What was the existing state of things at 
 that time ? There was no other rival corporation in the field, 
 of the one character or the other—no canal company, no rail 
 road company—-nor turnpike company—there were only individual 
 proprietors lying along the shores of the Potomac. But their lands 
 had been subjected to the right of passage secured to this great 
 public corporation, in the modes prescribed by the act; and with 
 regard to the right of passage, they had taken the place of the sove¬ 
 reigns under whom these individuals held. These sovereigns holding 
 the eminent domain, had a right, themselves, to condemn any portion 
 of these lands of individuals for a public use. This right they had 
 imparted, by this charter, to the Chesapeake and Ohio Canal Com¬ 
 pany. The company took the place of these sovereigns, quoad hoc 9 
 and their right could be no more disputed than the right of these 
 sovereigns themselves, so far as the route they might select called 
 for the exercise of this eminent domain. 
 
 Was it necessary to the existence of this right of selection that 
 they should locate the route, or purchase the land or condemn it ? It 
 was indeed, necessary, on exercising this right, that they should do 
 these things. But was it necessary to the existence of the right of 
 selection itself, that they should do these things ? Are not the right, and 
 the exercise of the right, different things ? The right is the previous 
 existence—the exercise is a mere consequence of the pre-existent right. 
 Your Honor, for example, has the right of deciding this cause, 
 according to your judgment : can gentlemen deny the existence of 
 your right, until you shall have exercised it, and shewn by your 
 decision, how you will exercise it ? Whether you decide it the one 
 way or the other, or do not decide it at all, still the right is equally 
 clear and indisputable. 
 
 Again, the right of eminent domain is in the State. This right, 
 and its exercise arc, certainly, very different things. If the charter 
 had limited a time, within which the right should be exercised, and 
 
29 
 
 had declared that if not exercised within this time, by the Chesapeake 
 and Ohio Canal Company, it might be exercised by any other cor¬ 
 poration that might be called into existence; then, indeed, after the 
 lapse of that time, having failed to exercise it, any other corpora¬ 
 tion, properly authorized, might supersede them. The charter has 
 done this. It says, in the 20th section, • they shall begin the work 
 within two years after they shall have been formed; that they shall 
 complete one hundred miles of the canal within five years ; and that 
 the entire eastern section shall he completed in twelve years; and 
 that, if they fail, in either of these particulars, the charter shall he 
 forfeited. Bift, within these limits, the right of choosing the route 
 is a full, subsisting, prior right. The right is the right of choosing 
 the route; and prior, because first in time : granted when there was 
 no rival corporation in the field—no competition. 
 
 Now, with this right, taking its date in the year ] 825, a right 
 flowing from the first compact of all these sovereigns, and consecrated 
 by that compact, was it competent to either of them, singly, to consti¬ 
 tute another corporation with power to invade the right, and take it 
 from the first grantees ? 
 
 The analogy attempted to be borrowed from general land warrants, 
 is entirely fallacious. The warrants themselves give no priority of 
 right to locate : all the holders of general land warrants are on a 
 perfect equality, and because there is no priority among the holders 
 of the land warrants, it is the act of location which creates the 
 prior right, and that by positive legislation. Here, on the contrary, 
 it is the grant which, proprio vigore , creates the prior right, and this 
 totally independent of any act of location. It is asked, whether the 
 holder of a general land warrant shall hold it up for an indefinite 
 length of time, and prevent the holder of another land w arrant from 
 locating it, on the assertion of prior right? No, I answer again : be¬ 
 cause it was never pretended that a general warrant gave any such 
 prior- right. But here the charter does give the prior right, and as 
 to the time for its location, that is limited by the charter in the man¬ 
 ner that has been mentioned. The only analogy to be borrowed from 
 land warrants, is not from general land warrants, hut special land 
 warrants, which do give title , which no general land warrant can, ex¬ 
 cept by prior location. For here our rights are limited to the valley 
 ot the Potomac, and its tributary streams. It is, then, a prior right, 
 located by our charter itself to the valley of the Potomac. It is a 
 right which, by the charter itself, is made dependent on the Potomac, 
 the vital current that is to supply it; and is thus, so special, as to de¬ 
 dicate to our use, so far as the selection of our route requires, the 
 whole valley of that river, on both shores. 
 
 I hold it to be clear, then, that, if the Company had been in exist¬ 
 ence in 1825, when the charter became complete by the consent of 
 all the parties, they would have taken a vested prior right to choose 
 the route of their canal, along the left bank of the PotorYiac ; a vest¬ 
 ed right , independent of any act of location, survey, contract, or writ 
 
30 
 
 of ad quod damnum : and one which neither of the sovereign parties 
 to our compact could have disturbed by a grant to another corpora- ' 
 tion, until after the lapse of that time, on which the charter itself 
 had predicated its continuance : and, in that state of things, had any 
 subsequently formed company attempted to forestall our right, by pre¬ 
 occupying the ground, no court of chancery would have hesitated to 
 injoin them from such interference. Now, would it have varied the 
 existence of the prior right granted by this charter, even had it been 
 the fact, that our Company was not in being, to take the right, 
 when granted, nor until after the creation of the Rail Road Company, 
 and the acquisition of their rights ? This is precisely the question 
 between us. 
 
 The complainants say, that we could acquire no rights under our 
 charter, till we, ourselves, had a legal existence : that we had no 
 legal existence till the election of President and Directors, in June, 
 1828 : that our rights are to date from that time, which was subse¬ 
 quent to their charter, and the acquisition of their rights, by purchase : 
 and, consequently, that our right is not prior to theirs, but subsequent 
 to it. On the other hand, we say that our rights are co-eval with 
 the .completion of our charter, to wit, 1825, when the act took effect, 
 by the assent of all, on whose assent its operation was predicated : 
 that though the Chesapeake and Ohio Canal Company had no legal 
 existence at that time, and, consequently, no capacity to take, yet, 
 the rights created for the intended corporation, even at that time, 
 passed from the grantors, and were in abeyance while their commis¬ 
 sioners, (i. e. the commissioners appointed by these sovereigns them¬ 
 selves ,) were taking the step necessary to form this Company : that 
 though these rights were in abeyance, during that period, they were 
 in existence , and beyond the power of recall: that, as soon as we came 
 into existence, these rights attached, and had relation \ back to the 
 time of the grant, displacing all intervening and interfering rights, 
 and, consequently, displacing all the pretended intermediate rights of 
 the complainants. 
 
 That the charter created the prior right in question, if there had 
 then been a body in existence, capable of taking that right, has been 
 already shown. 
 
 But it is alleged— 
 
 1. That no grant can nave any effect, until there is a grantee in 
 being, and capable of taking the grant. 
 
 This is precisely the question which has been so often before the 
 Supreme Court, and which has been so uniformly decided in opposi¬ 
 tion to the other side. A grant in favor of a non-existing person is 
 of every day’s occurrence : a grant, for example, to the unborn son, 
 of A.; a grant to A. for life, remainder to the heirs of B., lie being 
 still alive, and his heirs, consequently, unascertained, or even unborn. 
 In/act, in all the cases of contingent remainders, to persons not in esse , 
 the case occurs of an estate created, where there is no one to take it. 
 Now, according to the doctrine on the opposite side, all grants of 
 this kind would be void. But this, we know, is not the case. The 
 
31 
 
 grant is a valid grant: the estate is a subsisting estate, and vests, 
 as soon as a person comes into being who meets the description in 
 the grant. Where the estate rests, in the mean time, has been dis¬ 
 puted among the writers. Fearne says it remains in the grantor, 
 or his heirs. Preston, on the contrary, holds that it passes out of the 
 grantor, and remains in abeyance. [2 Preston on Abstracts, 100, 
 3 W. 253.] But both agree that it is an estate, which, having been 
 once created, has passed beyond the power of the grantor, and beyond 
 his resumption or modification ; and that there is no revertor in favor 
 of him, or his heirs, until a sufficient time shall have been allowed, to 
 see whether the contingent remainder man will come into being. 
 
 I do not understand this proposition to be controverted, as it applies 
 to estates created in favor of natural persons, who are not yet in 
 being ; but it is supposed that a different principle applies, where the 
 grant is made in favor of a corporation, which has not yet come into 
 being. But the distinction is merely ideal, and has been several 
 times refuted by the decisions of the Supreme Court of the United 
 States. 
 
 The case of the town of Pawlet was the case of a grant, before the 
 revolution, to a non-existing church in New Hampshire. No church 
 came into existence before the revolution, and it was insisted that the 
 grant could not take effect, for the want of a grantee^ that the title 
 remained in the grantors ; and that, by the revolution, the State took 
 the place of the grantors. 
 
 But what say the Court ? 
 
 “ A grant by the Crown for a non-existing parish church , may 
 take effect bij the common law , as a donation, ad pins usus." 
 
 After such donation, it would not be competent for the Crown to 
 resume it at its own will, or alien the property, without the same 
 consent which is necessary to the alienation of other church pro¬ 
 perty.“ Under such circumstances, until a church should be 
 legally erected, and a parson regularly inducted, the fee of the lands 
 granted would remain in abeyance, like the hereditas jacens of the 
 Roman law, in expectation of an heir.” [The Town of Pawlet vs. 
 Clarke, et al. 9 Cranch, 292.] 
 
 Again, in the case of Dartmouth College vs. Woodward, 4 Whea¬ 
 ton, 518. “ When a charter is granted, and it brings the corpora- 
 
 “ tion into existence, without any act of the natural persons who 
 u compose it, and gives such corporation any privileges, franchises, 
 
 or property, the law deerps the corporation to be first brought into 
 (i existence, and then clothes it with the granted liberties and pro- 
 “ perty. 
 
 “ When, on the other hand, the corporation is to be brought into 
 “ existence by some future acts of the corporators, the franchises re- 
 “ main in abeyance, until such acts are done, and when the corpora- 
 “ tion is brought into life, the franchises instantaneously attach to it. 
 
 “ There is no difference between the case of a grant of land, or of 
 €i franchises to an existing corporation, and a grant to a corporation, 
 “ brought into life for the very purpose of receiving the grant. As 
 
32 
 
 u soon as it is in esse, ami the franchises ami property become vested 
 “ and executed in it, it is as much an executed contract, as if its 
 “ prior existence had been established for a century.” 
 
 Again, in the case of the Dartmouth College and Woodward, (p. 203.) 
 
 Unless there be a power reserved in such charter, it cannot be 
 altered, (p. 202.) 
 
 That in such a case every interference with the rights granted by 
 the charter is a violation of the Constitution of the United States, is 
 apparent, not only from these cases, but that also of Green vs. 
 Biddle, in 8th Wheaton. 
 
 The effect of these authorities is, that, if our charter, by its terms, 
 created a prior right, (which I have shown it did,) this prior right 
 passed from the grantors, beyond recall, by the charter itself, at the 
 date of the grant: that though it was in abeyance until we came into 
 existence, still, in that condition, it was an estate beyond recall, like 
 the hereditas jacens of the Roman law, in expectation of an heir; and 
 that, as soon as we came into existence, this right attached to us, and 
 became vested in us, with relation back to the date of the grant, dis¬ 
 placing all intermediate and interfering rights derived from the same 
 grantors, and, a fortiori, displacing all such rights, when derived from 
 one, only, of the grantors. That it attached, with relation back to 
 the date of the grant, is not only manifest from the authorities, but 
 stands upon the clearest principles of reason: for when it passed from 
 the grantor, at the date of the grant, for whose benefit did it pass ? 
 And while it was in abeyance, for whose benefit was it in abeyance ? 
 Even on the principle of Fearne, that it did not pass out of the 
 grantor, but remained in him till the grantee came in existence, still 
 he admits that the rights, thus created, are unalterable, and vest, with 
 relation back to the date, as soon as the grantee does come into ex¬ 
 istence. 
 
 Having thus considered the question, on the ground of strict law, 
 let us now take it up on the ground of reason and right; of equity 
 and good conscience. 
 
 Here is a case of several sovereigns uniting, in publishing to the 
 world a charter, to incorporate the Chesapeake and Ohio Canal Com¬ 
 pany, wjth certain rights defined in that charter. They proclaim, 
 by this charter, that the Company, when formed, shall have certain 
 specified rights. These sovereigns, themselves, appoint commission¬ 
 ers for the purpose of collecting subscriptions, in order, that the 
 Company may be formed. They say to the public, (t subscribe, and 
 “ as soon as one fourth of the capital is taken, you shall be incorpo- 
 “ rated, and become possessed of these rights.” In the mean time, 
 these sovereigns, themselves, go on to survey the route, and estimate 
 the cost, for the purpose of demonstrating to the public the practica¬ 
 bility of the enterprize which they propose. The reports of these 
 surveyors and engineers are published to the world. They, them¬ 
 selves, propose the left bank as the best route, and the public are in¬ 
 vited to form their calculations on that bank. 
 
 In full reliance on the faith of this charter, the public subscribe: these 
 sovereigns themselves subscribe. The subscriptions are filled up, to 
 
33 
 
 the amount required to make them a corporation ; and when, by their 
 charter, they have become incorporated, and are looking to the exe¬ 
 cution of their charter, in good faith, they find that a rival, started by 
 one of these sovereigns, without any consultation with the rest, has 
 gone and pre-occupied the ground, and that they are to be driven from 
 all the advantages of that choice of route, on the faith of which they had 
 made and paid their subscriptions, and this Company had been incor¬ 
 porated. Does not reason, and justice, and conscience, revolt at a 
 proceeding like this ? And,if permitted to succeed, is it not a violation 
 of the faith of our charter ?—the subversion of the fundamental condi¬ 
 tions on which our contract rests ? And, if so, do not reason and com¬ 
 mon sense, and common honesty, confirm the decision which we 
 have shown that the law has pronounced upon our right ? 
 
 Objection. —Is this right to remain in abeyance, in perpetuam, in 
 order to see whether the Company can be formed, and these sovereigns 
 to be forever debarred from starting any useful project on the same 
 ground ? 
 
 Answer —This was a question for these sovereigns, themselves, 
 when they gave this charter ; not for individuals, nor for this Court. 
 They have given a charter, fixing no limit, in point of time, within 
 which the Company shall be formed. If reason fixes a limit, what 
 is that limit ? It is a reasonable time . But who is to judge of the rea¬ 
 sonableness of the time ? The founders of the corporation. Have 
 they pronounced the time unreasonable, and the charter, therefore, as 
 a void charter F On the contrary, through the whole of the three years, 
 charged as unreasonable,they have been continually legislating.amend- 
 ing the charter, up to the time of the actual incorporation, treating 
 it, therefore, as a continuing charter, and thereby admitting that there 
 has been no delay which affects its existence. But if there has been 
 delay, whose delay was it ? Not the delay of the corporation, for they 
 had no existence ; but the delay of these sovereigns themselves. For 
 the Commissioners, who w r ere collecting these subscriptions, w ere their 
 officers, not ours ; were acting under the orders of these sovereigns, 
 as expressed in their charter ; not under our orders. These sove¬ 
 reigns, themselves, then, by their agents, collected these subscriptions, 
 up to the time of the incorporation, and afterw ards subscribed them¬ 
 selves ; (for both Maryland and the United States subscribed after¬ 
 wards ;) and you are yet called on to decide that the time.thus con¬ 
 sumed was unreasonable, as against these sovereigns, w ho were them¬ 
 selves the consumers. As to the time consumed, after this Company 
 became a corporation, in waiting to call a meeting of the Stockhold¬ 
 ers, to choose a President and Directors, this is accounted for by our 
 answer. Who is to judge of the reasonableness of this account, with 
 reference to the continuance of the charter ? The founders on a quo 
 warranto for non user: for we were then a corporation, and there 
 could be no forfeiture, hut by a judgment of Court. But the found¬ 
 ers of the corporation, instead of complaining of that delay, have ap¬ 
 proved it; and one of them, the State of Maryland, was a subscriber, 
 after that alleged delay, which is supposed to have forfeited the 
 charter. 
 
 3 
 
34 
 
 Our argument is, that, prior to our actual incorporation, by the 
 subscription of one-fourth of our stock, this prior right of choice ex¬ 
 isted in our favor, and could not be disturbed by a rival grant; more 
 especially, by a rival grant from one of the sovereigns who had united 
 in giving ours. 
 
 II. But if it were necessary that we should have come into corpo¬ 
 rate existence, and that this hereditas jacens should actually have 
 vested, in order to give it the effect of keeping off intruders ; it did 
 vest , by our incorporation, in October, 1827, which was prior to 
 those acts of contract and warrants of condemnation, on which the 
 complainants found their right. Now, whether we had a corporate 
 existence, or not, is a question of fact, put in issue by the bill and 
 answer; and, being a question of fact, the answer is decisive, accord¬ 
 ing to the case of Delaplane vs. Parker. They say, that they wish 
 proof to show that these subscriptions were conditional; but the ac¬ 
 count, given by the answer, is responsive to this allegation, and com¬ 
 pletely overthrows it. 
 
 Objection .—We were not incorporated till a meeting of the'Stock¬ 
 holders was called, and that meeting had ascertained that one-fourth 
 of the capital had been subscribed. 
 
 Answer .—I do not so understand the charter ; the third section pro¬ 
 vides, that as soon as one-fourth of our stock shall have been subscrib¬ 
 ed, we shall be incorporated into a company by the name of “The Che¬ 
 sapeake and Ohio Canal Companythat we may sue and be sued; and, 
 as such corporation shall have perpetual succession, and a common 
 seal ; and that the estate , rights , and interests of the Company shall 
 be deemed and taken to be real estate ; and, thereupon , i. e. after we 
 have become incorporated , it shall be the duty of the Commissioners 
 to call a genera] meeting of the stockholders, to elect a President and 
 Directors. So that our actual incorporation, instead of being made 
 to depend upon this call, is to precede it; and the call is to be the conse¬ 
 quence of the previous incorporation . This call is to be made for the 
 purpose of electing a President and Directors; which is, itself a cor¬ 
 porate act , and presupposes a corporation. 
 
 Objection .—Who is to ascertain when one-fourth of the stock is sub¬ 
 scribed ? 
 
 Answer —The commissioners appointed by the Executives of the 
 several States—for they are to make the call, and, therefore, must have 
 first ascertained that one-fourth of the stock had been subscribed : and 
 the call of the stockholders, required by the third section, is clearly 
 for the purpose of electing a President and Directors, and not for the 
 purpose of ascertaining the fact that one-fourth of the stock has been 
 subscribed. The third section begins as follows : “ That, whenever 
 one-fourth, or a greater part of the said stock, shall have been sub¬ 
 scribed, in the manner aforesaid, then the subscribers, their heirs, and 
 assigns, shall be, and arc hereby declared to be, incorporated into a 
 company, by the name of the Chesapeake and Ohio Canal Company,” 
 See. The words “in the manner aforesaid,” are supposed to mean 
 “shall be ascertained in the manner aforesaid;” but the clause is 
 
 / 
 
35 
 
 shall have been subscribed in the manner aforesaid .” And the re¬ 
 ference is to the first section of the law which describes the manner 
 of subscribing. The first section goes on to recite that “ the said 
 commissioners shall cause books to be opened at such times and places 
 as they shall think fit, in their respective States, and in the District 
 of Columbia, under the management of such persons as they shall ap¬ 
 point for receiving subscriptions to the capital stock of the company 
 hereinafter incorporated ; which subscriptions may tye made either in 
 person or by power of attorney: and notice shall be given in such 
 manner as may be deemed advisable, by one or more of the said com¬ 
 missioners, of the time and places of opening the books.” The words 
 “ shall be subscribed in the manner aforesaid,” mean—1. Shall have 
 been subscribed in books opened by these commissioners in Maryland, 
 Virginia, and the District of Columbia. 2. Shall have been sub¬ 
 scribed in person, or by power of attorney. 3. After due notice of 
 the time and places of opening the books. 
 
 Objection .—The second section makes it perfectly clear that tlie act 
 of incorporation takes effect only upon a call of the meeting of the 
 stockholders. 
 
 Answer. —That section proves no such thing. It has not a single 
 expression which puts the date of the incorporation upon the call thus 
 required ; that is not at all the office or aim of that section. The call 
 required by the second section, i§ a call to be made after the commis¬ 
 sioners shall have closed their books ; a time which has not yet arrived, 
 because the books are still open. “ And the said commissioners,” 
 says the second section, “shall cause the books to be kept open at 
 least forty days : and, within twenty days after the expiration there¬ 
 of, shall call a general meeting of the subscribers at the city of Wash¬ 
 ington ; of which meeting, notice shall be given,” &c.: “ and the com¬ 
 missioners, at the time and place aforesaid, shall lay before such of 
 the subscribers as shall meet, according to the said notice, the book 
 containing the state of the said subscriptions ; and if one-fourth of 
 the capital sum of six millions of dollars should appear not to have 
 been subscribed, then the said commissioners, or a majority of them, 
 at the said meeting, are empowered to take and receive subscriptions 
 to make up such deficiency, and may continue to take and receive 
 such subscriptions for the term of twelve months thereafter,” &c. 
 
 13 y the first line of the section, the commissioners are required to 
 keep open their books at least forty days ; this is the minimum ; they 
 may keep them open as much longer as they please. The section then 
 proceeds : “ and within twenty days after the expiration thereof.” Af¬ 
 ter the expiration of what ? After the expiration of the forty days? 
 Surely not, for this would be to convert the minimum into a maxi¬ 
 mum, and to prohibit them from keeping open their books longer than 
 the forty days. If it docs not mean within twenty days after the 
 forty days, what else can it mean, but “ after the expiration of the 
 time during which they shall choose to keep the books open ?” The 
 section, then, contemplates the fact of the commissioners having closed 
 their books, and having closed them under two alternative situations. 
 
36 
 
 1. Under a deficiency of subscriptions, and in despair of complet¬ 
 ing them. 
 
 2. Under a redundance of subscriptions which requires to be pruned. 
 
 If they shall have closed their books under either of these aspects, 
 
 the second section proceeds to direct what shall be done. They shall 
 call a meeting of the stockholders, and lay the books before them ; 
 and if, on this inspection, the first appears to be the case, the section 
 says the project «hall not yet be abandoned, but the books shall be 
 kept open twelve months longer, to see whether the requisite sum 
 cannot yet be obtained. If, on the other hand, the books shall pre¬ 
 sent the other aspect of a redundant subscription, the section proceeds 
 to describe how it shall be pared down. 
 
 The last proviso —“ that unless one fourth of the capital shall be 
 subscribed, as aforesaid,” i. e. in case tjie books shall have been 
 closed on a deficiency of subscription, and one-fourth cannot be ob¬ 
 tained within twelve months after the meeting of the stock-holders, 
 consequent upon such close, then “all subscriptions made in conse¬ 
 quence of this act shall be void “and that, in case one-fourth 
 and less than the whole capital shall be subscribed as aforesaid, (i. e. 
 under the circumstances contemplated by the section, to wit: of the 
 hooks having been, in the first instance, closed on a deficiency,) then, 
 the said commissioners, or a majority of them, are empowered to go 
 on and receive subscriptions.” So that the whole section looks to a 
 case which has not yet occurred—a close of the subscription books, 
 and a close of them either under circumstances of deficiency or of re¬ 
 dundance. 
 
 The whole section is merely directory , as to what the commis¬ 
 sioners shall do, when they shall determine to close their books under 
 either of the circumstances aforesaid : not having one single provision 
 which looks to the designation of the point of time when the subscribers 
 shall be considered as incorporated . To designate this time , is the pecu¬ 
 liar and single office of the third section. The 3d section begins, “that 
 whenever one fourth, or a greater part of the said stock shall have been 
 subscribed in the manner aforesaid .” Will it be said, subscribed in the 
 manner set forth in the 2nd section : i. e. subscribed after the books 
 shall have been closed by the commissioners, either under a deficiency 
 or a redundancy ?—subscribed after a call of the stockholders shall 
 be made upon a close of the books, in a state of hopeless deficiency, 
 or overflowing exuberance ? Could it have been the intention of the 
 Legislature, that the company should not become incorporated, unless 
 the one fourth exactly , no more nor less, should have been gained under 
 sucb peculiar and critical circumstances ? Could they have been guilty 
 of such folly and madness, as to put the success of a project so dear to 
 them, on such an unnecessarily perilous cast of the die ? The construc¬ 
 tion would be preposterous. No, they were done with the subject of 
 the second section—that critical case had been disposed of—provided 
 for : and now, in the third section, they resume the general legisla¬ 
 tion for the furtherance of their object: and the words, shall be sub¬ 
 scribed in the manner aforesaid, allude simply to the manner in which 
 subscriptions are directed to be taken by the first section. 
 
37 
 
 There is, then, I apprehend, no force in the objection that the cor¬ 
 poration is to take date from the call of the stockholders, required 
 by the second section, since the third section makes this call a conse¬ 
 quence of the previous incorporation : and this call is merely for the 
 purpose of electing a President and Directors. 
 
 Objection .—It must take date from the call of the stockholders, be¬ 
 cause such a published call was necessary, to give the world notice 
 of their corporate existence, and that their corporate rights had 
 arisen, so as to put all other parties on their guard. 
 
 Answer. —l. This may, in the view of our adversaries, be a good 
 reason why the date of this corporation should have been predicated 
 on this public call. But the Legislature have thought differently— 
 they have not put it on that call, but on the subscription of one-fourth 
 of the stock. They alone have the power to say when the corpora¬ 
 tion shall arise, and so far from making that call the date of the cor¬ 
 poration, they have made it the mere consequence of the previous in¬ 
 corporation. The call is made, because the corporation has taken 
 effect, and it is made for the mere purpose of electing executive offi¬ 
 cers—a purpose which, in itself, implies the previous corporation; 
 because such election is the act only of a body already incorporated. 
 
 2. Who were to be put on their guard, as to the fact that our cor¬ 
 poration had arisen ? According to our view of the subject, the only 
 persons interested in knowing that fact, were the corporators them¬ 
 selves. The riparian proprietors, along the Potomac, required no 
 such notice/ The published charter had informed them of the con¬ 
 templated canal, and that this canal would certainly pass through 
 the lands of some of them. They knew that, by the general laws 
 of the land, their property was liable to be taken at a fair valua¬ 
 tion, whenever it was required for public use, and that it could not 
 be taken without notice, nor without a fair valuation. What advan¬ 
 tage could have been derived to them, from notice of the specific 
 time at which the Company had become incorporated ? Could they, 
 with that knowledge, have done any thing to ward off the passage of 
 this canal through their land, even if it had been desirable ? If they 
 could not, as they manifestly could not, of what use would this 
 knowledge have been to them? 
 
 The real, though disguised meaning of this argument about public 
 notice to put people on their guard, is neither more nor less than 
 this—that the Rail Road Company, having the notice, might the soon¬ 
 er have been put on the qui vive , and have run down upon the Poto¬ 
 mac, to secure these'same difficult passes, which they take care to say 
 in every bill, they did not secure merely for the purpose of obstructing 
 the Chesapeake and Ohio Canal: which can mean nothing more nor 
 less than this, that although this was one of the purposes, it was not the 
 only one; and whether this be a purpose so moral, or so legal, as to 
 have required notice to be able to accomplish it, this court and the seve¬ 
 ral other tribunals before which this question is to come, are to decide. 
 
 But if, indeed, a published call of the stockholders was necessary 
 to our incorporation, and fixes the date of our incorporation, that 
 
call took place in March, 1828— before the inception of the rights allege 
 ed in the bill , and our rights were consequently vested by our incor¬ 
 poration before the commencement of those rights on which the bill 
 relies. This fact is stated by the answer, and is conclusive, because 
 responsive to that allegation of the bill, that we were not an organ¬ 
 ized corporation before their measures to acquire these titles had been 
 taken. The answer in averring every fact which was essential to our 
 incorporation, is responsive to that part of the Bill which denies this 
 character, and is conclusive on this head. 
 
 Objection*— The charter was not a charter until accepted by the 
 Stockholders, and it required a meeting of the Stockholders to say 
 whether they would accept it. 
 
 Answer. —This is not the case : because the mere subscription was 
 an acceptance of it by every one who subscribed, and required no 
 farther expression of acceptance. 
 
 Objection. —We took no powers under the charter till we were organ¬ 
 ized by the election of the President and Directors—none, at least, 
 relative to the acquisition of land for the passage of our canal, and 
 the 4th and 15th sections prove it. 
 
 Answer. —All our franchises attached by our incorporation. The 
 President and Directors were merely the executive officers, to carry 
 the pre-existing rights into effect. All our rights arose when our 
 charter was completed. Before our incorporation these rights were 
 in abeyance; but as soon as that event took place, they immediate¬ 
 ly attached, and became vested rights; and the President and Direc¬ 
 tors appointed by us, were merely the officers designated by the law to 
 carry our pre-existing rights into effect. If, therefore, our rights 
 did not attach till the appointment of the President and Directors, 
 they arose upon the charter, and were in abeyance till we should be¬ 
 come incorporated, and these officers be appointed ; and, then, they 
 attached with relation back to the date of the charter. 
 
 This closes my view of the question of prior right. 
 
 If I have succeeded in maintaining the existence of this right, under 
 the charter, it must be manifest that it is perfectly immaterial wheth¬ 
 er we had, or had not, designated the precise route of our canal, be¬ 
 fore the Rail Road Company came into existence. My position is, 
 that we had the right to elect our ground on either bank of the Poto¬ 
 mac : and that, to shut up either bank against us, as this injunction 
 does, is a violation of oui chartered rights. When the Rail Road 
 Company came into existence, they saw the charter of the Chesapeake 
 and Ohio Canal Company, and could not but have known that this broad 
 right of election was open to them. It is no apology, on their part, to 
 say, that they did not know what route we would choose. Sir, if this 
 were necessary for them to know, they did know it. They knew, at 
 least, that we would take the left bank of the river. The surveys 
 and reports of the Commissioners, which are before you, and which 
 were made preparatory to our charter, and some of them accompany¬ 
 ing it in point of time, bad proclaimed to all the country that the left 
 bank of the river presented the proper route for the canal. These 
 
89 
 
 surveys and reports were the acts of the sovereigns, themselves, who 
 gave us our charter : they were presented to the world, in explanation 
 of our charter ; were published to prove its practicability, and thus 
 to assure the public confidence in the enterprize, and to invite subscrip¬ 
 tions. They are part of the representations which led to the compact 
 between the sovereigns, and the subscribers to the Chesapeake and Ohio 
 Canal Company. And yet, the counsel on the other side say, that these 
 surveys and reports “ were not made for us —they were made for 
 “the public; for them , too: it was mere Imp-hazard and luck, on our 
 “ part, that we have the benefit of them . 99 Sir, let these surveys and 
 reports be inspected : it will be found that they have reference, only, to 
 a continuous canal; not to a rail-road. They connect themselves imme¬ 
 diately and palpably with our charter, and constitute a part of the 
 £ inducements to our contract. These surveys and reports were notice 
 enough to the Rail-road Company, that, in seizing on the left bank of 
 the river, they were seizing on that which had been previously 
 granted to another company. But this seizure itself, and the sleep¬ 
 less zeal with which it has been urged, contains, in itself, the evi¬ 
 dence. that our route was understood, and that the design was to 
 forestall us. What do they themselves, in their various bills, 
 describe and admit to have been their object ? “ They deputed en¬ 
 
 gineers to pass along the said route , and wherever the character of 
 the ground was such as to leave but little choice as to the location of 
 i said road , or to present but one passage, to make, at once, an 
 actual location of said road, over the same, designating it by well 
 defined boundaries, so that said location might serve as regulating 
 points for the intermediate sections, and might secure the passage of 
 the road ; and, also, agents and attornies to procure for you orators, 
 a title to all the lands included in said locations,” &c. And when 
 you come to look at the contracts filed with the bill, you find them 
 directed to all these difficult passes, where the ground was such as to 
 leave but little choice, or to present but one passage ; and these con¬ 
 tracts call for the low water-mark, as the boundary. Now, against 
 whom were these operations directed ? Who was there, against whom 
 ^ they could possibly be directed, but the Chesapeake and'Ohio Canal 
 Company ? Nay, lest you should doubt upon this subject, they go on 
 to assure you, in all their bills, that they did not take these steps, 
 “ merely to impede or obstruct the Chesapeake and Ohio Canal Com¬ 
 pany and the constant repetition of the same form of expression, 
 precisely in the same words in every bill, proves that it was the 
 result of study and premeditation ; and that it thus admits that it was 
 partly their purpose to impede and obstruct the Chesapeake and Ohio 
 Canal, and partly to secure the single passage for themselves. They 
 knew, therefore, and well knew, that the left bank of the river 
 would, and must be our choice; and this choice, it is the direct and 
 admitted object of these operations to defeat. This object this in¬ 
 junction, connected with their contracts and locations, completely 
 accomplishes ; for it effectually drives us from the left bank, into the 
 river, below water-mark, or across tin? river. 
 
 / 
 
40 
 
 Now, if your Honor thinks that they have a right to do this, we 
 pray you to say so, at once ; that we may reach, as soon as possible, 
 the Court of last resort, upon this subject. But do not keep our 
 works hung up, by this injunction, and cause us to lose months and 
 years for the proposed surveys, which, as I have demonstrated, must, 
 at last, bring you back to the very question which is now presented— 
 the question of prior right of choice upon the charters of the two com¬ 
 panies. 
 
 The learned counsel who has opened this argument for the com¬ 
 plainants, represents the State of Maryland as having sent both these 
 rival companies into the field, armed with equal rights, and bid them 
 (to use his own expression,) “ God speed,” in acquiring, as fast as 
 they could, by competition, the titles of the riparian proprietors. I 
 cannot deem so humbly of the wisdom or justice of the Legislature of 
 Maryland, as to adopt the opinion, that any such project was enter¬ 
 tained : I believe that its wisdom would have foiled so poor and suici¬ 
 dal a project; and that its justice would have shrunk from the medi¬ 
 tation of such a breach of the faith pledged by it in the charter of the 
 Chesapeake and Ohio Canal Company. 
 
 The argument on the other side perpetually confounds the acquisi¬ 
 tion of the title of the riparian proprietors, with that right of emi¬ 
 nent domain which over-rides those titles. To whom was this emi¬ 
 nent domain (or what is the same thing, a right of passage flowing 
 from it,) first pledged ? This, and this alone, is the question here : 
 for, whoever has this, has a right which cannot be ousted, by buy¬ 
 ing in the titles of the riparian proprietors. And were it not for the 
 respect due to the injunction of this Court, I should adviser my clients 
 to proceed in the execution of their work, just as if nothing had been 
 done by the Baltimore and Ohio Rail-road Company, being tho¬ 
 roughly convinced that my clients are cloathed, by their charter, 
 with the prior and paramount right of making their way, according 
 to their own choice of route, along the valley of the Potomac, without 
 regard to the question of, who are the individual proprietors of the 
 lands through which they wish to pass ? 
 
 Sir, I am perfectly satisfied, that the State of Maryland was so £ 
 far from having intended to create this disgraceful and mutually 
 ruinous collision, that they did not even anticipate it, when they gave 
 their charter to the Baltimore and Ohio Rail Road Company. The 
 structure of the charter, itself, satisfies me of this fact, and the con¬ 
 viction becomes irresistible, when we compare the charter with those 
 proceedings in Baltimore which led to the application for it, and were 
 offered to the Legislature in support of that application. (See Appen- 
 dix.F.) In these proceedings, the true termini of the Rail Road are given, 
 the whole project insists on the superior advantages of the Rail Road 
 to the canal, in this ; that the Rail Road will reach its destination by 
 the shortest and most direct route, while the canal must, necessarily, 
 follow the sinuosities of the stream which is to feed it. It is needless 
 to dwell on this view of the subject, as it is so fully expanded in the 
 answer. 
 
c 
 
 41 
 
 But, be your construction of the charter of the Rail Road Compa¬ 
 ny what it may, the same question, the same prominent, sole, decisive 
 question continually recurs, which of the two Companies has the prior 
 choice of route ? If we have it, we pray you to dissolve the injunction 
 which interferes with the exercise of this right. If the complainants 
 have it, we pray you, with equal fervor , to perpetuate the injunction , 
 and enable us to carry this question of right, as speedily as possible , 
 to its ultimate decision. 
 
 If the complainants have this prior right, why do they object to the 
 perpetuation of their injunction ? If the right be theirs, it must be 
 theirs upon the charters. They cannot require these surveys. We 
 deprecate them , as producing to us, a wanton and most rutnous delay. 
 But the complainants object, both to your dissolving the injunction, 
 and perpetuating it. What possible motive can they have for this 
 course ? Can human charity, or even human credulity, imagine any 
 other bqt one; to protract the litigation ; to obstruct the Canal 
 Company, as long as possible, in the execution of their work ; to an¬ 
 noy and weary them into a surrender of their rights, or an abandon¬ 
 ment of the great object committed to their care. Can they hope that 
 the High Court of Chancery of Maryland will lend itself to purposes 
 such as these ? 
 
 I submit the case, in full reliance that the Court will be rather dis¬ 
 posed to hasten this dispute to its end, than to yield to a proposition 
 which can be productive of nothing but delay and oppression to which 
 ever party has the right. • 
 
 • 
 
 4 
 
,y> 
 
 l 
 
 \ 
 
 I 
 
APPENDIX. 
 
 
 '•# * 1 
 
 r A. 
 
 EXTRACT FROM AN ACT OF THE STATE OF VIRGINIA, 
 
 Jin act incorporating the Chesapeake and Ohio Canal Company —[ PasS‘ 
 ed January 27, 1824.] 
 
 “ Whereas a navigable canal from the tide water of the river Poto¬ 
 mac, in the District of Columbia, to the mouth of Savage Creek, on 
 the north branch of said river, and extending thence, across the Alle¬ 
 ghany mountain, to some convenient point of the navigable waters of 
 the river Ohio, or some one of its tributary streams, to be fed through 
 its course, on the east side of the mountain, by the river Potomac and 
 the streams which empty therein, and on the western side of the moun¬ 
 tain, and in passing over the same, by all such streams of water as 
 may be beneficially drawn thereto by feeders, dams, or any other 
 practicable mode, will be a work of great profit and advantage to the 
 people of this State, and of the neighboring States, and may ultimate¬ 
 ly tend to establish a connected navigation between the eastern and 
 western waters, so as to extend and multiply the means and facilities 
 of internal commerce and personal intercourse between the two great 
 sections of the United States, and to interweave more closely ail the 
 mutual interests and affections that are calculated to consolidate and 
 perpetuate the vital principles of Union : and whereas it is represent¬ 
 ed to this General Assembly, that the Potomac Company are willing 
 and desirous that a charter shall be granted to a new company, upon 
 the terms and conditions hereinafter expressed ; and that the charter 
 of the present company shall cease and determine: 
 
 “Beit therefore enacted by the General Assembly of Virginia , That, 
 so soon as the Legislatures of Maryland and Pennsylvania, and the 
 Congress of the United States, shall assent to the provisions of this 
 act, arid the Potomac Company shall have signified their assent to the 
 same by tlTeir corporate act, a copy whereof shall be delivered to the 
 Executives of the several States aforesaid, and to the Secretary of 
 the Treasury of the United States, there shall be appointed by the 
 said Executives and the President of the United States, three com¬ 
 missioners on the part of each State, and the Government of the Unit¬ 
 ed States, any one of whom shall Le competent to act for his respective 
 Government. The said commissioners shall cause books to be opened 
 at siich times and places as they shall think fit, in their respective 
 States, and the District of Columbia, under the management of such 
 persons as they shall appoint, for receiving subscriptions to the capi¬ 
 tal stock of the Company, hereinafter incorporated : which subscrip¬ 
 tions may be made either in person or by poweh of attorney ,* ami 
 
44 
 
 notice shall be given in such manner as may be deemed advisable, by 
 one or more of the said commissioners, of the time and places of 
 opening the books. 
 
 “ 2. Aiid the said commissioners shall cause the books to be kept 
 open at least forty days. And, within twenty days after the expira¬ 
 tion thereof, shall call a general meeting of the subscribers *at the city 
 of Washington, of which meeting notice shall be given, by a majority 
 of the commissioners aforesaid, in at least four of the newspapers 
 printed in Pennsylvania, Maryland, Virginia, and the District of Co¬ 
 lumbia, at least twenty days next before the said meeting; and such 
 meeting shall and may be continued from day to day, until the busi¬ 
 ness is finished ; and the commissioners, at the time and place afore¬ 
 said, shall lay before such of the subscribers as shall meet according 
 to the said notice, the book containing the state of the said subscrip¬ 
 tions; and if one-fourth of the capital sum of six millions of dollars 
 should appear not to*have been subscribed, then the said commission¬ 
 ers, or a majority of them, at the said meeting, are empowered to 
 take and receive subscriptions to make up such deficiency, and may 
 continue to take and receive such subscriptions for the term of twelve 
 months thereafter ; and a just and true list of all the subscribers, with 
 the sum subscribed by each, shall be made out, and returned by the 
 said commissioners, or by a majority of them, under their hands, to the 
 Board of Public Works of this State, to the Governor and Council 
 of the State of Maryland, to the Secretary of State of the State of 
 Pennsylvania, and to the Secretary of the Treasury of the United 
 States, to be carefully preserved ; and in case more than six millions 
 of dollars shall be subscribed, then the sum subscribed shall be re¬ 
 duced to that amount, by the said commissioners, or a majority of 
 them, by beginning at and striking off a share from the largest sub¬ 
 scription or subscriptions, and continuing to strike off a share from all 
 subscriptions under the largest, and above one share, until the same is 
 reduced to the capital aforesaid, or until a share is taken from all 
 subscriptions above one share; and lots shall be drawn between sub¬ 
 scribers of equal sums, to determine the number of shares which each 
 subscriber shall be allowed to hold, on a list to be made for striking 
 off as aforesaid; and if the sum subscribed still exceed the capital 
 aforesaid, then to strike off, by the same rule, until the sum subscribed 
 is reduced to the capital aforesaid, or all the subscriptions reduced to 
 one share respectively ; and, if there still be an excess, then lots shall 
 be drawn to determine the subscribers who are to be excluded, in or¬ 
 der to reduce the subscription to the capital aforesaid : which striking 
 off shall be certified on the lists aforesaid ; and the said capital stock 
 of the company hereby incorporated, shall consist of six millions of 
 dollars, divided into sixty thousand shares, of one hundred dollars 
 each : of which every person subscribing may take and subscribe for 
 one or more whole shares; and such subscriptions may be paid and 
 discharged either in the legal currency of the United States, or in the 
 certificates of stock of the present Potomac Company, at the par or 
 nominal value thereof, or in the claims of the creditors of the said 
 
45 
 
 company, certified by the acting President and Directors to have been 
 due, for principal and debt, on the day on which the assent of the said 
 company shall have been signified by their corporate act, as herein¬ 
 before required : Provided , That the said certificates of stock shall 
 not exceed, in the whole amount, the sum of three hundred and eleven 
 thousand one hundred and eleven dollars and eleven cents; nor the 
 said claims the sum of one hundred and seventy-five thousand eight 
 hundred dollars : Provided , also , That the stock so paid for in certifi¬ 
 cates of the stock of the present company, and of the debts due from 
 the said company, shall be entitled to dividend, only as hereinafter 
 provided : and that no payment shall be received, in such certificate 
 of stock, until the Potomac Company shall have executed the con.- 
 veyance prescribed by the thirteenth section of this act: And pro¬ 
 vided , That, unless one-fourth of the said capital shall be subscribed, 
 as aforesaid, all subscriptions made in dbnsequence of this act shall 
 be void; and, in case one-fourth, and less than the whole capital, shall 
 be subscribed as aforesftd, then the said commissioners, or a majority 
 of them, are hereby empowered and directed to take and receive the 
 subscriptions, which shall first be offered in whole shares, as afore¬ 
 said, until the deficiency shall b§ made up; a certificate of which ad¬ 
 ditional subscription shall be made, under the hands of said commis¬ 
 sioners, or a majority of them, for the time being, and returned as 
 aforesaid. 
 
 “ 3. And be it further enacted. That, whenever ope-fourth, or a 
 greater part of the said stock shall have been subscribed, in the man¬ 
 ner aforesaid, then the subscribers, their heirs and assigns, shall be, 
 and are hereby declared to be. incorporated into a company, by the 
 name of the “ Chesapeake and Ohio Canal Company,” and may sue, 
 $nd be sued, and, as such, shall have perpetual succession, and a com¬ 
 mon sea! ; and the estates, rights, and interests, of the said company, 
 shall be adjudged and taken in law to be real estate; and it shall, 
 thereupon, be the duty of the said commissioners, or a majority of 
 them, to call a general meeting of the said subscribers, at such time 
 and place, as they, or a majority of them, shall appoint, after adver¬ 
 tising the same in such public prints as they, or a majority of them, 
 may think proper; and such of the said subscribers as shall be present 
 at the said meeting, or a majority of them, are hereby empowered and 
 required to elect a President and six Directors, for conducting the 
 said undertaking, and mana'ging all the said company’s business and 
 concerns, for and during such time, not exceeding three years, as 
 the said subscribers, or a majority of them, shall think fit; and, in 
 counting the votes of all general meetings of the said company, each* 
 member shall be allow ed one vote for every share, as far as ten shares, 
 and one vote for every five*shares above ten, by him or her held at 
 the time, in the stock of the said company : and any proprietor, by 
 writing, under his or her hand, executed before two witnesses, may 
 depute any other member or proprietor to vote and act as proxy for 
 him or her, at any general meeting : Provided , also , That no officer 
 or director of said company shall, under any circumstances, be allow¬ 
 ed to vote on any stock but his own. » 
 
46 
 
 4. And be it further enacted , That the said President and Directors* 
 and their successors, or a majority of them, assembled, shall have 
 full power and authority to appoint, and, at their pleasure, dismiss, 
 such engineer or engineers, and agent or agents, as they may deem 
 expedient, and to fix their compensation; and to agree with any per¬ 
 son or persons, on behalf of the said company, to cut canals, erect 
 flams, open feeders, construct locks, and perform such other works, 
 as they shall judge necessary.'or expedient for completing the canal 
 hereinbefore mentioned and described ; and, out of the money arising 
 from the subscriptions and tolls, and other aids, hereinafter given, to 
 pay for the same, and to repair and keep in order the said canals, 
 locks, and other works necessary thereto, and to defray all incidental 
 charges; and also to appoint a treasurer, clerk, and other officers, 
 toll-gatherers, managers, and servants, as they shall judge requisite, 
 and to agree for, and settle, their respective wages or allowances; and 
 to settle, pass, and sign their accounts; and also to make and estab¬ 
 lish rules of proceeding, and to transact all ot#er business and con¬ 
 cerns of the said company, in and during the intervals between the 
 general meetings of the same; and they shall be allowed, as a com¬ 
 pensation for their trouble therein, suck sum of money as shall, by a 
 general meeting of the stockholders, be determined : Provided , always , 
 Tlyit the treasurer shall give bond, in such penalty, and with such 
 security, as the said President and Directors, or a majority of them, 
 shall direct, for the true ami faithful discharge of the trust reposed in 
 him ; and that the allowance to be made him for his services shall not 
 exceed three dollars in the hundred for the disbursements by him 
 made ; and that no officer in the company shall have any vote in the 
 settlement or passing of his own account. 
 
 “ 5. And be it further enacted, That, on all subscriptions which shall 
 not be paid, as hereinbefore provided, in the certificates of the stock, 
 or debts of the present Potomac Company, there shall be paid, at the 
 time of subscription, on each share, one dollar; and thereafter, when 
 the company shall be formed, the stock subscribed shall be paid in 
 such instalments, and at such times, as the President and Directors 
 shall, from time to time, require, as the work advances : Provided , 
 That not more than one-third part shall be demanded within any year 
 from the commencement of the work; nor any payment demanded, 
 until at least sixty days’ public notice thereof shall have been given, 
 in such public newspapers as the said Pre'sident and Directors shall 
 direct such notices to be published in : and, whenever any subscriber 
 shall fail to pay any instalment, called for by the company, it shall 
 afnl may be lawful for the company, upon motion to be made in any 
 court of record, after ten days’ notice, to obtain judgment against 
 the subscriber so failing to pay ; or the said comply, at their option, 
 may, after giving sixty days’ notice, in such public newspaper, print¬ 
 ed within the District of Columbia, as they may judge proper, sell 
 the stock of such subscriber; and, if the proceeds of any such sale 
 shall exceed the sum demanded,the surplus, after paying the expenses 
 of such sale, shall be paid to the subscriber so failing, or to his legal 
 
47 
 
 representatives; and the purchaser, at such sale, shall become a 
 stockholder, and be subject to the same rules and regulations, and en¬ 
 titled to the same privileges, rights, and emoluments, k as original sub¬ 
 scribers under this act.” 
 
 “ 9. And be it enacted , That, for and in consideration of the expenses 
 the said stockholders will be at, not only in cutting the said canal, 
 erecting locks and dams, providing aqueducts, feeders, and other 
 works, and in improving and keeping the same in repair, the said ca 
 nal and all other works aforesaid, or required to improve the naviga¬ 
 tion thereof, at any time hereafter, with all their profits, subject to the 
 limitations herein provided, and to none other, shall be, and the same 
 ar6 hereby, vested in the said stockholders, their heirs and assigns, 
 forever, as tenants in common, in proportion to their respective shares, 
 and be forever exempt from the payment of any tax, imposition, or 
 assessment, whatsoever ; and that it shall and may be lawful for the 
 said president and directors, at all times, forever hereafter, to de¬ 
 mand and receive, at such places as shall hereafter be appointed by 
 the president and directors aforesaid, tolls for the passage of vessels, 
 boats, rafts, produce, and all other articles, at such rates as the said 
 president and directors may hereafter allow and establish, according 
 to the provisions of this act. 
 
 “ 10. And belt enacted, That, if the Commissioners hereby required 
 to be appointed, shall die, resign, or refuse to act, the vacancy occa¬ 
 sioned thereby shall he filled by the same authority by which the ori¬ 
 ginal appointment was made ; and the person or persons appointed to 
 fill such vacancy shall have all the power and authority which was 
 vested in the commissioner whose place he or they shall be appointed 
 to supply ; and, when any part of the canal aforesaid shall have been 
 completed, according to the true intent and meaning of this act, the 
 president and directors of the company hereby created shall have pow¬ 
 er, and it shall be their duty, to ordain and establish a rate of toils to 
 be paid upon boats, vessels, rafts, or other property, passing on the 
 part of the canal so completed, and so, from time to time, as part or 
 parts shall be completed, and until the eastern section thereof shall 
 be finished up to the mouth of Savage river or creek, and, thereafter, 
 until the entire canal shall have been finished according to the true 
 intent and meaning of this act. For the collection of which tolls, the 
 • president and directors shall have power to establish so many toll 
 houses, and, at their pleasure, to appoint and remove so many col . 
 lectors, and at such places, as, from time to time, they may judge ex¬ 
 pedient ; and the said president and directors shall have full authority, 
 subject, to the direction and control of a majority in interest of the 
 stockholders represented in any general meeting, to regulate and fix 
 a tariff of tolls, not exceeding an average of two cents per ton per mile ; 
 and so to adjust the said tolls in relation to the capacity or burthen 
 of the boats, and the dimensions of the rafts passing the locks of the 
 said canal, as to promote economy of water and time in the naviga¬ 
 tion thereof. ‘ 
 
t 
 
 48 
 
 “ 11. And be it enacted , That the president and directors shall an¬ 
 nually, or semi-annually, declare and make such dividend of the nett 
 profits, from the tolls to be received, according to the provisions of this 
 act, and from the other resources of the company, as they may deem 
 advisable, after deducting therefrom the necessary current, and the 
 probable contingent expenses, to be divided among the proprietors of 
 the stock of the said company, in proportion to their respective shares, 
 in manner following, that is to say : if such nett profits shall not ex¬ 
 ceed ten per cent, on the amount of shares, which shall have been paid 
 for in current money of the United States, and expended on the 
 eastern section of the said canal, then the whole therpof shall be di¬ 
 vided among the holders of such shares, in proportion to their respect¬ 
 ive shares; but if such nett profits shall exceed the rate often per 
 cent, per annum, in any year, on such amount of stock, then the sur¬ 
 plus shall be divided among such stockholders as shall have paid for 
 their shares in certificates of the debts of the Potomac Company, until 
 they shall therefrom have received a dividend of six per cent. : and, if 
 a surplus yet remain, the same shall be divided among the stockhold¬ 
 ers who shall have paid for their shares in certificates of the stock of 
 the Potomac Company, until they shall have received therefrom a di¬ 
 vidend of six per cent, per annum on such shares : and, if a surplus 
 still remain, so long as the western section of the canal shall remain 
 unfinished, such surplus shall be applied, from time to time, to the 
 construction and completion thereof, in such mode as the president and 
 directors, under such rules and regulations, not inconsistent with the 
 Constitution of the United States, or of the several States aforesaid, 
 as the stockholders, or a majority thereof, in general meeting, may 
 prescribe, until the western section of the canal shall be also com¬ 
 pleted ; after which, if such surplus shall still arise, the same shall be 
 divided among all the stockholders, without discrimination, in pro¬ 
 portion to their respective shares, until the annual dividend thereon 
 shall have reached 15 per cent.; beyond which'it shall never extend. 
 But, should the nett revenue of the company exceed that amount 
 for any two years in succession, then such excess shall be applied, by 
 the president and directors, in such mode as shall be agreed on by a 
 majority of the stockholders convened in general meeting : first, to 
 strengthening and improving the works of the canal of every descrip¬ 
 tion requiring the same; next, to the accommodation, where not al* 
 ready provided, of the inhabitants of the shores of the river Potomac, 
 and of the country drained by the tributary streams thereof, now navi¬ 
 gable, or which may hereafter become so, by affording to them, in the 
 best practicable mode, a safe and easy access to the canal, from the 
 surface of the main river, and of the said streams emptying therein ; 
 and, last of all, to the erection of such walls, of stone or other materials, 
 along the water margin of the canal, as shall fit the same for the navi¬ 
 gation of steam boats of a size adapted to the said canal. And should 
 the said tolls continue, after all such improvements have been com¬ 
 pleted, to nett more than fifteen per cent, per annum to the stockhold¬ 
 ers, for any two years in succession, the tolls upon the same shall be 
 
49 
 
 mluced by the president and directors, according to some just and 
 equitable ratio, till the said dividend shall fall to fifteen per cent, per 
 annum : Provided , That, should the said dividend thereafter sink be¬ 
 low fifteen per cent, the said tolls, or a part thereof, may be renewed, 
 till the said nett dividend reaches that amount. And for any, or all 
 the within mentioned purposes, the said president and directors are 
 empowered to borrow, in behalf of the company, on the credit of such 
 excess of tolls, such sum or sums of money, as they may deem ex¬ 
 pedient, at such rate of interest, and with such delay of payment, as 
 they may stipulate, with the previous consent of a majority of the 
 stockholders, in general meeting convened. 
 
 “ 12. And be it further enacted , That it shall be the duty of the Pre¬ 
 sident and Directors of the Chesapeake and Ohio Canal Company, so 
 Jong as there shall be and remain any creditor of the Potomac Com¬ 
 pany, who shall not have vested his demand against the same in the 
 stock of the Chesapeake and Ohio Canal Company, to pay to such 
 creditor or creditors, annually, such dividend, or proportion of the 
 nett amount of the revenues of the Potomac Company, on an average 
 of the last five years preceding the organization of the said proposed 
 company, as the demand of the said creditor or creditors at this time, 
 may bear to the whole debt of one hundred and seventy-five thousand 
 eight hundred dollars. 
 
 u 13. And be it further enacted , That whenever the Potomac Com- 
 pany shall have declared its assent to the provisions of this act, in the 
 manner hereinbefore provided, it shall be lawful for the said company 
 to surrender its charter, and convey, in due form of law, to the Ches¬ 
 apeake and Ohio Canal Company, hereby incorporated, all the pro¬ 
 perty, rights, and privileges, by them owned, possessed, and enjoyed, 
 under the same; and thereupon it shall be lawful to and for the said 
 company, hereby proposed to be created, to accept such surrender 
 and transfer, and to hold, possess, use, and occupy, all the said pro¬ 
 perty, rights, and privileges, in the same manner, and to the same ef¬ 
 fect, as the said Potomac Company now hold, possess, and occupy the 
 same by law; and thereupon the charter of the said Potomac Compa¬ 
 ny shall be, and the same is hereby, vacated and annulled, and all 
 the rights and powers thereby granted to the Potomac Company, shall 
 be vested in the company hereby incorporated; and it shall be the 
 duty of the said last mentioned company, until every section of the 
 contemplated canal shall be completed, so as to be used and enjoyed 
 for the purposes of navigation, to keep the corresponding part of the 
 river in a proper state for navigation, and in good order as the same 
 now is; and, in default thereof, they shall be in all things responsi¬ 
 ble, in the same manner as the Potomac Company is now responsi¬ 
 ble. And in all rivulets, streams, creeks, and rivers, required for 
 the western section of the said Chesapeake and Ohio Canal, the same 
 rights shall be, and are hereby, vested in the Chesapeake and Ohio 
 Canal Company, by this act, as the charter of the Potomac Company 
 vested in the said company, in relation to the waters of the Potomac, 
 and the tributary streams thereof. 
 
 5 
 
50 
 
 <» 14. And be it enacted , That the said canal, and the works to be 
 erected thereon in virtue of this act, when completed, shall forever 
 thereafter be esteemed and taken to be navigable as a public high- 
 way, free for the transportation of all goods, commodities, and pro¬ 
 duce, whatever, on payment of the tolls to be imposed, as provided by 
 this act; and no other toll or tax whatever, for the use of the said ca¬ 
 nal and the works thereon erected, shall, at any time hereafter, be im¬ 
 posed, but by consent of the said States, and of the United States. 
 
 66 15. And whereas, it is necessary for the making of the said canaL 
 locks, dams, ponds, feeders, and other works, that a provision should 
 be made, for condemning a quantity of land for the purpose : Be it 
 enacted , That it shall and may be lawful for the said president and 
 directors, or a majority of them, to agree with the owners of any 
 land, through which the said canal is intended to pass, for the pur¬ 
 chase, or use and occupation thereof; and, in case of disagreement, 
 or in case the owner thereof shall be a femme covert, under age, non 
 compos, or out of the State or county, on application to a justice of 
 the county in which such land shall be, the said justice of the peace 
 shall issue his warrant, under his hand, to the sheriff of the county, 
 to summon a jury of eighteen inhabitants of his county, not related to 
 the parties, nor in any manner interested, to meet on the land to be 
 valued, at a day to be expressed in the warrant, not less than ten, nor 
 more than twenty days thereafter; and the sheriff, upon receiving 
 the said warrant, shall forthwith summon the said jury,” &c. &c. 
 
 “ 16. And be it enacted , That it shall be the duty of the company 
 hereby incorporated, to cut, make, and construct the said canal, with 
 good and sufficient locks, on the most improved plan for expedition 
 in the use thereof, and with a width of not less than forty feet at the 
 surface of the water therein, or of twenty-eight feet at the bottom 
 thereof, unless the quality of the soil shall require a narrow 7 base to 
 admit of a sufficient slope to preserve the banks from sliding down, 
 and sufficient to admit, at all seasons, the navigation of boats and 
 rafts, with a depth of four feet water at the least; and wherever 
 wastes shall be essential to the security of the said canal, and in no 
 other situation whatever, along the same, the waste water of the 
 said canal may be, from time to time, sold or disposed of by the said 
 company, for the purpose of supplying such works and machinery as 
 require a water power. And along one side at least of the said ca¬ 
 nal, and such aqueducts as it may .render necessary, there shall be 
 provided throughout its whole extent, a towing path of sufficient 
 breadth to apply the power of horses to the navigation thereof.” 
 
 “ 19. And be it enacted, That, whenever it shall become necessary to 
 subject the lands of any individual to the purposes provided for in 
 this act, and their consent cannot be obtained, it shall and may be 
 lawful for the company to enter upon such lands, and proceed to the 
 execution of such works, as may be requisite; and that the pendency 
 of any proceedings in any suit in the nature of a writ of ad quod dam¬ 
 num, or any other proceedings, shall not hinder or delay the progress 
 of the work ; and it shall be the duty of every court to gfre prece- 
 
51 
 
 dence to controversies which may arise between the company created 
 by this act, and the proprietors of land sought to be condemned for 
 public uses, and to determine them in preference to all other causes. 
 
 20. And be it enacted , That the said canal shall be, and the same 
 is hereby, divided into two sections, to be denominated first and se¬ 
 cond, or eastern and western, respectively ; that Ihe first, or eastern 
 section, shall begin at the District of Columbia, on tide water, and 
 terminate at or near the bank of Savage river, or creek, which emp¬ 
 ties into the north branch of the Potomac, at the base of the Alle¬ 
 ghany mountain : that the second, or western section, shall com¬ 
 mence at the said termination, and extend along the valley of Sa¬ 
 vage river, or creek, so far as the same, or any branch thereof as 
 may reach some convenient point thereon, for connecting the eastern 
 and western waters, by a tunnel through, or an open cut across, the 
 dividing ridge between the same : and thence, after crossing the said 
 dividing ridge, shall proceed- to the highest steamboat navigation of ' 
 the Ohio river, or of some one tributary stream thereof, in such di¬ 
 rection as, in the opinion of the said President and Directors, shall 
 be best calculated for the attainment of the end set forth in the pre¬ 
 amble of this act : that the said President and Directors shall first 
 construct the eastern section aforesaid, out of the capital stock here¬ 
 inbefore mentioned, and shall next proceed to construct, with all pos¬ 
 sible despatch, the western section thereof. In case the said com¬ 
 pany shall not begin the said work within two years after the com¬ 
 pany shall have been formed, or if the work, having been so begun, 
 shall not be diligently prosecuted, so that one hundred miles of the 
 said canal, with the adequate locks and incidental improvements, 
 shall not be completed, and in fit order for navigation* in the term of 
 five years from the commencement of the work, then all interest of 
 the said company in the navigation and tolls shall cease and deter¬ 
 mine, and their charter shall be thereafter taken to be null and void; 
 and so, in like manner, shall the said charter be null and void, if the 
 entire eastern section be not completed in the term of twelve years 
 from the said commencement. And should the said company fail to 
 begin the western section of the said canal in two years after the time 
 allowed as aforesaid for the completion of the eastern section ; or, 
 having begun the western section, shall fail to complete the same in 
 six years after such beginning, then all right, title, and interest, of 
 the said company, in the said western section, shall cease and deter¬ 
 mine; and the several States aforesaid shall have full authority to 
 incorporate another company for the completion of such section, or to 
 complete the same in any other mode that they may deem expedient. 
 And if, after the completion of the said canal and locks, the President 
 and Directors shall fail to keep the same in repair for twelve months 
 at any time, then, in like manner, the interest of the company in the 
 navigation and tolls shall cease, and their charter shall be forfeited. 
 
 21. And be it further enacted , That the right to the waters of the 
 river Potomac, for the purpose of any lateral canal or canals, which 
 the State of Virginia or Maryland may authorize to be made in con- 
 
 nivDV 
 
52 
 
 nexion with the said canal, is reserved to the said States respectively; 
 that a similar right is reserved to the State of Pennsylvania, in rela¬ 
 tion to the rivers and streams within the territory of that State, the 
 waters of which may be used in supplying the western section of the 
 said canal; that the Government of the United States shall retain the 
 power to extend the said canal in or through the District of Colum¬ 
 bia, on either or both sides of the river Potomac : Provided , That, 
 before this act shall take effect, the Congress of the United States shall 
 authorize the States of Virginia and Maryland, t>r either of them, to 
 take and continue a canal from any point of the above named canal, 
 or the termination thereof, through the territory of the District of 
 Columbia, or any part thereof, to the territory of the said States, or 
 either of them, in any direction they may deem proper, upon the same 
 terms and conditions, and with all the rights, privileges, and powers 
 of every kind whatsoever, that the company incorporated by this act 
 have to make the Chesapeake and Ohio Canal: And , provided also , 
 That, in taking or extending such lateral canal or canals through the 
 District of Columbia, by either of the said States, no impediment or 
 injury be done to the navigation of the said Chesapeake and Ohio 
 Canal. 
 
 22. This act, or so much thereof as respects the canal and works 
 designed to be constructed in the District of Columbia, and the States 
 of Virginia and Maryland, shall take effect, with such necessary mo¬ 
 dification in the construction thereof, as shall fit it for such limited 
 application or use, upon the assent of the Congress of the United 
 States, and the Legislature of Maryland being given thereto ; and 
 upon its receiving the further assent of the Legislature of Pennsylva¬ 
 nia, the whole .and every section and part thereof shall be valid and 
 in full force and operation. 
 
 23. Be it further enacted , That the assent of the Congress of the 
 United States, required by the first section of this act, and the au¬ 
 thority conferred by the fourteenth section, is understood and taken 
 to relate only to their authority as the legislature of the District of 
 Columbia. 
 
 24. Be it further enacted , That all acts, and parts of acts, coming 
 
 within the purview of this act, shall be,, and the same are hereby, re¬ 
 pealed. , 
 
 ACT OF THE STATE OF MARYLAND. 
 
 An act to confirm An act of the General Assembly of the State of Vir¬ 
 ginia, entitled “An act incorporating the Chesapeake and Ohio Canal 
 Company[Passed December session , 1824.] 
 
 Whereas the General Assembly of Virginia have heretofore, at the 
 December session of the said General Assembly, in the year eigh- 
 
58 
 
 teen hundred and twenty-three, passed an act, entitled “An act 
 incorporating the Chesapeake and Ohio Canal Company , 99 in the 
 substance or words following : 
 
 [See the preceding Act.] 
 
 Therefore , be it enacted by the General Assembly of Maryland , That 
 the said act of the General Assembly of Virginia be, and the same is 
 hereby, accepted, assented to, and confirmed. 
 
 And be it further enacted and declared , That, by confirming and ac¬ 
 cepting the act of Virginia, it is not intended by the Legislature of 
 Maryland to deny to the Congress of the United States the constitu¬ 
 tional power to legislate on the subjects of roads and canals. And for 
 the purpose of removing all doubt as to the right of the State of Ma¬ 
 ryland to intersect the said Chesapeake and Ohio Canal, for the pur¬ 
 pose of conducting a lateral canal or canals to Baltimore, or else¬ 
 where in the State of Maryland, from that part of the said Chesapeake 
 and Ohio Canal which shall be within the District of Columbia— 
 Beit further enacted and declared, That the said act of Virginia has 
 been accepted and confirmed by the Legislature of Maryland, on the 
 express condition that the act of Congress contemplated by the twen¬ 
 ty-first section of the Virginia act, shall direct and provide some safe 
 and practicable mode whereby such lateral canal or canals may be 
 secured to the State of Maryland, and whereby, also, it may he de¬ 
 termined whether such lateral canal or canals will injure the said 
 Chesapeake and Ohio Canal, within the meaning and intention of the 
 said twenty-first section of the Virginia act. 
 
 ACT OF THE CONGRESS OF THE UNITED STATES. 
 
 An act confirming an Act of the Legislature of Virginia , entitled “ An 
 act incorporating the Chesapeake and Ohio Canal Companyand an 
 act of the State of Maryland , confirming the same —[Approved March 
 3, 1825.] 
 
 Be it enacted by the Senate and House of Representatives of the 
 United States of America in Congress assembled , That the act of the 
 Legislature of the State of Virginia, entitled « An act incorporating 
 the Chesapeake and Ohio Canal Company,” be, and the same is here¬ 
 by, ratified and confirmed, so far as may be necessary for the purpose 
 of enabling any company that may hereafter be formed by the author¬ 
 ity of said act of incorporation, to carry into effect the provisions 
 thereof, in the District of Columbia, within the exclusive jurisdiction 
 of the United States, and no further. 
 
 Sec. 2. And be it further enacted , That should the State of Vir¬ 
 ginia or Maryland desire, at any time, to avail itself of the right 
 secured to it by the twenty-first section of the act aforesaid, to take 
 
54 
 
 and continue a canal from o.ny point of the Chesapeake and Ohio Ca¬ 
 nal, to any other point within the territory of the District of Colum¬ 
 bia, or through the same, on application to the President of the Unit¬ 
 ed States, by the Executive of the State, the President is authorized 
 and empowered to depute three skilful commissioners of the United 
 States’ Corps of Engineers, to survey and examine so much of the 
 route of such canal as may effect, in any manner, the navigation of 
 the Chesapeake and Ohio Canal. The said commissioners, or a ma¬ 
 jority of them, shall ascertain, ^s far as practicable, whether the ca¬ 
 nal proposed to be constructed by the State aforesaid, will injure or 
 impede the navigation of the Chesapeake and Ohio Canal, and report 
 to the President of the United States the facts and reasons on which 
 they may ground their judgment thereupon ; which report shall be 
 submitted to the Congress of the United States at their session next 
 ensuing the date thereof, for their decision thereon ; and if Congress 
 shall be of opinion that the said canal may be cut in the manner pro¬ 
 posed as aforesaid, without impeding or injuring the navigation of the 
 Chesapeake and Ohio Canal, the same shall be conclusive thereon. 
 
 ACT OF THE STATE OF MARYLAND. 
 
 Jin act for the promotion of Internal Improvement .—[Passed March 6, 
 
 1826.] 
 
 Sec. 1 . Beit enacted by the General Assembly of Maryland , That, 
 so soon as the Board of Public Works of this State shall, by actual 
 survey, have ascertained, and reported to the Governor and Council, 
 the practicability of excavating a canal, as hereinafter described, 
 from some convenient point on the Potomac river intersecting or con¬ 
 tinuing the Chesapeake and Ohio Canal to the city of Baltimore, 
 there shall be appointed, by the Governor and Council, three com¬ 
 missioners, who shall cause books to be opened, at such times and 
 places as may be determined on by the Board of Public Works, for 
 the purpose of receiving subscriptions to the capital stock of the com¬ 
 pany hereinafter incorporated; which subscriptions may be made 
 either in person or by power of attorney, notice having been pre- 
 * viously given, in such manner as the said Board of Public Works 
 may deem expedient, of the times and places of opening the said 
 books. 
 
 4. Jlnd be it enacted , That the said President and Directors, and 
 their successors, or a majority of them assembled, shall have full 
 power and authority to appoint, and at their pleasure dismiss, such 
 engineer or engineers, and agent or agents, as they may deem expe¬ 
 dient, and to fix their compensation, and to agree with any person or 
 persons on behalf of the said company, to cut canals, erect dams, 
 open feeders, construct locks, and perform such other works as they 
 shall judge necessary and expedient, for completing a canal from the 
 
55 
 
 termination or other point on the Chesapeake and Ohio Canal, to be 
 determined, as aforesaid, by the Board of Public Works, to the city 
 of Baltimore; &c. 
 
 17. And be it enacted , That, whenever it shall become necessary 
 to subject the lands of any individuals to the purposes provided for in 
 this act, and their consent cannot be obtained, it shall and may be 
 lawful for the Company to enter upon such land, and proceed to the 
 execution of such works as may be requisite; and that the pendency 
 of any proceedings in any suit in the nature of a writ of ad quod 
 damnum, or any other proceedings, shall not hinder or defay the 
 progress of the work, and it shall be the duty of every Court to give 
 precedence to controversies which may arise between the Company 
 created by this act, and the proprietors of land sought to be con¬ 
 demned for public uses, and # to determine them in preference to all 
 other causes. 
 
 Sec. 19. And be it enacted, That the Treasurer of the Western 
 Shore be, and he is hereby, authorized and required, for and on be¬ 
 half of the State, to subscribe to the Chesapeake and Ohio Canal 
 Company for stock to the whole amount of the stock of the Potomac 
 Company owned by the State, and of the debt due to the State by 
 the said Potomac Company, and to pay for the same in the certifi¬ 
 cates of the stock of the Potomac Company, and in the evidences of 
 the debt due to the State, certified in the manner specified in the 
 charter of the said Chesapeake and Ohio Canal Company; and also 
 to subscribe for five thousand shares of the stock of the said company, 
 * payable, agreeably to the terms of the charter, in the legal curren¬ 
 cy of the United States. 
 
 Sec. 20. And be it enacted, That the Treasurer of the Western 
 Shore be, and he is hereby, instructed and required, in like manner, 
 to subscribe for five thousand shares in the Maryland Canal Compa¬ 
 ny hereby incorporated. 
 
 Sec. 21. And be it enacted , That the sum of two hundred thousand 
 dollars shall be, and the same is hereby, appropriated, or such part 
 thereof as may be necessary to drain, embank, and render dry and 
 arable, the low lands on the margins of such rivers and creeks of the 
 Eastern Shore of this State, as the Board of Public Works may 
 think proper and recommend* and 1o complete and carry into effect 
 such plans for opening and improving the navigation of the Poco- 
 moke, Manokin, Wycomico, Great Choptank, Chester, Elk, and 
 North East Rivers, as the Board of Public Works may devise, re¬ 
 commend, and contract for on behalf of the State of Maryland: Pro¬ 
 vided, That, before any part of the aforesaid subscriptions, except 
 so much as is payable in the stock and debt of the Potomac Compa¬ 
 ny, shall be^nade, or any part of the sum herein appropriated to ex¬ 
 ecute the improvements contemplated by this act to be made, on the 
 low lands situated on the margins of the aforesaid rivers and creeks, 
 or to execute the improvements of the Pocombke, Manokin, Wyco¬ 
 mico, Great Choptank, Chester, Elk, and North East Rivers, be 
 expended, the Congress of the United States shall, by law, authorize 
 
56 
 
 a subscription for not less than ten thousand shares of the capita! 
 stock of the Eastern section of the Chesapeake and Ohio Canal, and 
 shall enact a law expressly securing to the State of Maryland, and 
 to any company incorporated, or hereafter to be incorporated by the 
 said State, the right to take and continue a canal from any point of 
 the Chesapeake and Ohio Canal through the Territory of Columbia, 
 or any part thereof, to the said State, in any direction it may deem 
 proper, upon the same terms and conditions, and with all the rights, 
 privileges, and powers, of every kind whatsoever^ granted to the 
 Chesapeake and Ohio Canal Company by the act of incorporation, 
 and deciding agreeably to the act of Congress passed at December 
 session, eighteen hundred and twenty-four, that the canal, as locat¬ 
 ed by the Board of Public Works under the authority of this act, may 
 be cut without impeding or injuring the navigation of the Chesapeake 
 and Ohio Canal. Jlnd, provided also , That the Board of Public 
 Works shall previously ascertain and certify to the Executive the 
 practicability of connecting, by the canal described in this act, the 
 Chesapeake and Ohio Canal, with the Patapsco River at the city of 
 Baltimore; and if the said Board of Public Works shall adopt for the 
 said canal a line wholly within the State of Maryland, then the act 
 of Congress last mentioned in the foregoing proviso, shall not be ne¬ 
 cessary to authorize the subscriptions and expenditure aforesaid: And 
 provided , also , That the Executive shall previously be satisfied that 
 the residue of the sum of money estimated by the United States 9 
 Board of Engineers to be adequate to the completion of the Eastern 
 section of the Chesapeake and Ohio Canal, after deducting the# 
 amount of the subscriptions of the State of Maryland and of the Unit¬ 
 ed States, herein provided to be made, hath been actually subscribed 
 by bona fide and competent subscribers. 
 
 22. And be it enacted , That if, at any time hereafter, a Company 
 shall be formed for the purpose of making a canal from the city of 
 Baltimore to York Haven, on the river Susquehannah, of the dimen¬ 
 sions contemplated in the report of the Commissioners to survey the 
 practicability and probable expense of a canal from the river Susque¬ 
 hannah to the city of Baltimore, the faith of the State is hereby pledg¬ 
 ed to grant a charter to such Company, with all and singular the 
 rights, privileges, and advantages, as are granted to the Company 
 created by this act, to extend the Canal from the Potomac to the city 
 of Baltimore, called the Maryland Canal; and the faith of the State 
 is also hereby pledged to subscribe for stock in said Company to the 
 amount of five hundred thousand dollars: Provided , That such sub¬ 
 scription shall not be made until the Executive of this State, for the 
 time being, shall be satisfied, that, with the amount so to be sub¬ 
 scribed on the part of the State, the whole sum necessary to the com¬ 
 pletion of the said canal hath been actually subscribed by bona fide 
 and competent subscribers. 
 
 23. And be it enacted , That the Treasurer of the Western Shore, 
 under the direction of the Executive, shall be, and he is hereby, au¬ 
 thorized and directed to negotiate for, and raise by loan, as they may 
 
57 
 
 become payable for canal stock, or other improvements hereinbefore 
 contemplated under the provisions of this act, the required sum or 
 sums of money, at a rate of interest not exceeding five per centum 
 per annum, payable quarter yearly; the whole of said loans to be re¬ 
 deemable at the pleasure of the State, at any time after the first day 
 of January, in the year of our Lord eighteen hundred and sixty. 
 
 24. And be it enacted, That the dividends and other emoluments 
 which may, from time to time, accrue to the State from the various 
 investments hereby authorized, and from the road stock now belong¬ 
 ing to the State, shall be, and the same are hereby, pledged and set 
 apart as a sinking fund, under the management of the Board of Pub¬ 
 lic Works, in the first place to pay and discharge the public debt in¬ 
 curred by the subscriptions hereinbefore authorized. 
 
 ACT OF THE STATE OF MARYLAND. 
 
 A supplement to the act , entitled “ An act for the promotion of Internal 
 Improvement 99 —[Passed March 10, 1827.] 
 
 Whereas, by the act, entitled “ An act for the promotion of In¬ 
 ternal Improvement, passed at December session, eighteen hundred 
 and twenty-five, it is, amongst other things, provided, that a part 
 of the subscriptions thereby authorized to the stock of the Chesa¬ 
 peake and Ohio Canal Company shall depend upon the subscription, 
 by the Congress of the United States, of not less than ten thousand 
 shares of said capital stock to the Eastern section of the said Chesa¬ 
 peake and Ohio Canal: And whereas, according to the provisions of 
 the charter creating said company, subscriptions are required to be 
 made without a reference to sections, Eastern or Western: 
 
 1. Beit enacted by the General Assembly of Maryland , That said 
 proviso, in said act contained, be, and the same is hereby, repealed; 
 and that the Treasurer of the Western Shore be, and he is hereby, 
 authorized and required, for and on behalf of the State, to make the 
 subscription provided for by the act aforesaid, whenever the Congress 
 of the United States shall have authorized subscription for not less 
 than ten thousand shares of the capital stock of the Chesapeake and 
 Ohio Canal Company, and shall have complied with the other re¬ 
 quirements of the original act aforesaid, to which this is a supplement. 
 
 2. And be it enacted , That the proviso in the twenty-first section of 
 said original act contained, requiring that the Executive shall, pre¬ 
 viously, be satisfied that the residue of .the sum of money estimated by 
 the United States’ Board of Engineers to he adequate to the comple¬ 
 tion of the Eastern section of the Chesapeake and Ohio Canal, after 
 deducting the amount of the subscriptions of the State of Maryland, 
 and of the United States, herein provided to be made, hath actually 
 subscribed by bona fide and competent subscribers, be, and the same 
 is hereby, repealed. 
 
 6 
 
58 
 
 3. And whereas, by the act to which this is a supplement, it is also 
 declared that a charter would be granted by this State for the mak¬ 
 ing of a canal from the river Susquehannah to the city of Baltimore, 
 as therein mentioned, and, by a subsequent act of the last session, en¬ 
 titled “ An act to incorporate the Susquehannah and Patapsco Canal 
 Company,” authorizing such canal to commence at York Haven, it 
 is provided, that this State should subscribe for stock of the said com¬ 
 pany, and appropriate the sum of five hundred thousand dollars to 
 the making said canal; and it having been thought proper to autho- 
 rize the commencement of a similar canal, in connexion with the 
 Pennsylvania canal, at or near Swetara creek, on the Susquehannah 
 river, and to be made as provided by the act passed at the present 
 session, entitled “ An act to incorporate the Pennsylvania and Mary¬ 
 land Canal Company,” and to transfer to the same the appropriation 
 aforesaid: Therefore, Be it enacted, That, so soon as the Governor 
 and Council shall be satisfied that eight thousand shares of the stock 
 of the company authorized by the said last mentioned act, shall have 
 been subscribed by bona fide and competent subscribers, and shall cer¬ 
 tify the same to the Treasurer ol* the Western Shore, then the said 
 Treasurer shall be, and he is hereby, authorized and required to sub¬ 
 scribe, on behalf of this State, for five thousand shares of the stock 
 of the said Pennsylvania and Maryland Canal Company. 
 
 4. And be it enacted , That so much of the act to which this is a 
 
 supplement, and the act to incorporate the Susquehannah and Pataps¬ 
 co Canal Company, as shall be found inconsistent with the provisions 
 of the act passed at the present session, entitled “ An act to incorpo¬ 
 rate the Pennsylvania and Maryland Canal Company,” he, and the 
 same are hereby, repealed. .$$ 
 
 ACT OF THE STATE OF MARYLAND. 
 
 A further supplement to the act , entitled “An act for the Promotion of 
 Internal Improvement."—[Passed December Session , 1827.] 
 
 Whereas, by the act, entitled “ A supplement to the act, entitled 4 An 
 act for the promotion of Internal Improvement,” passed at Decem¬ 
 ber session, eighteen hundred and twenty-six, chapter two hundred 
 and eleven, it is, amongst other things, provided that one of the 
 conditions upon which the Treasurer of the Western Shore shall 
 be authorized to subscribe for five thousand shares in the capital 
 stock of the Chesapeake and Ohio Canal Company, is, that when¬ 
 ever the United States shall have authorized subscriptions for 
 not less than ten thousand shares of the capital stock of the Chesa¬ 
 peake and Ohio Canal Company; and whereas it is important, 
 with reference to the interest of the State, that the grant already 
 made by her, to that company, should be made dependent upon 
 such other conditions and restrictions, as will effectually secure the 
 
completion of this work, if ever commenced, and the previous pay¬ 
 ment of the instalments upon all other subscriptions; and that 
 some mode of payment of the subscription already made, should 
 be provided, having reference to the exhausted condition of the 
 Treasury, in lieu of the mode of payment provided by the terms 
 of the original subscription : Therefore, 
 
 Sec. 1 . Be it enacted by the General Assembly of Maryland, That 
 the Treasurer of the Western Shore be authorized to subscribe the 
 aforementioned five thousand shares of the capital stock of the Che¬ 
 sapeake and Ohio Canal Company, whenever the commissioners, 
 their successors, or a majority of them, appointed on the part of this 
 State, to aid in opening books, and taking subscriptions to the stock 
 of said company, shall certify that the sum of two millions five hun¬ 
 dred thousand dollars has been subscribed by bona fide subscribers, 
 with such additional securities, as to them may be deemed ample, to 
 ensure the faithful compliance on the part of the subscribers of the 
 aforesaid two millions five hundred thousand dollars : and provided, 
 also, that the instalments thereon, similar to that required to be paid 
 on behalf of the State, and all the previous instalments, which may 
 have accrued thereon, shall have been paid, before any payment shall 
 be demanded on account of the State’s subscription. 
 
 Sec. 2. And be it enacted , That the said subscription is authorized 
 and directed upon the condition, that the said President and Direc¬ 
 tors of the said Chesapeake and Ohio Canal Company shall certify to 
 the said Treasurer, their agreement, under the corporate seal of said 
 company, to accept arid receive, in payment of the instalments which 
 may become due on any such subscription, as they may be called for, 
 certifieates of stock of the State of Maryland, at par, irredeemable 
 for fifteen years, and bearing an interest of five per centum per annum, 
 payable quarterly, to commence at the end of one year after the same 
 shall have been issued in succession; and that, upon any such sub¬ 
 scription being made, the said Treasurer is further authorized and 
 directed to borrow, on the credit of the State, on the best obtainable 
 terms, from time to time, the funds necessary to meet and discharge 
 the first advance, and each successive payment, whensoever and as 
 often as any instalment on the said subscription of the State shall be 
 demanded, and become due, in conformity to the provisions of the 
 charter of the said company; and to issue for the same, certificates 
 of stock of the State, bearing interest at the rate of five per centum 
 per annum, payable quarterly; provided, that the said stock shall be 
 redeemable at the pleasure of the State, at any time after fifty years 
 from each successive issue of certificates as aforesaid; and the pre¬ 
 mium, if any, on each and every of the said loans, shall he invested 
 in some safe and productive stock, at the discretion of the said Trea¬ 
 surer, with the advice and consent of the Governor and Council, for 
 the time being; and the interests, dividends, or profits, arising from 
 such investment or investments, shall he re-invested as aforesaid, for 
 the eventual redemption of the said loans : and the said funds, when 
 obtained under the authority of this act, the said Treasurer is hereby 
 
60 
 
 directed to pay to the ol der of the President and Directors of the 
 Chesapeake and Ohio Canal Company, in conformity to the provi- 
 sions of the charter of the said company, and to receive therefor the 
 necessary acquittances; or, in case it shall be deemed more beneficial 
 to the interest of the State, in the estimation of the said Treasurer, 
 with the approbation and concurrence of the Governor and Council, 
 the said Treasurer shall be, and he hereby is, authorized and direct¬ 
 ed, whensoever and as often as any instalment on the said subscrip¬ 
 tion of the State shall be demanded, and become due, in conformity 
 to the provisions of the said charter, to issue certificates of stock of 
 the State, at par, irredeemable for fifteen years, bearing interest at 
 the rate of five per centum per annum; the said interest upon such 
 certificates to commence at the end of one year after the same shall 
 have been issued, in succession, and to be paid quarterly thereafter; 
 and the said Treasurer is authorized and directed to cause the said 
 certificates to be delivered to the person or persons authorized to re¬ 
 ceive the said instalments, as they shall severally bqcome due, and to 
 demand and receive,* from such person or persons, upon the delivery 
 of the said certificates, a full acquittance and discharge for and on 
 behalf of the State, for the instalment for which the said certificates 
 were issued : provided, always, that, in case a premium of five per 
 centum, or exceeding five per centum, may he obtained upon any loan 
 required for any instalment as aforesaid, that then, and in that case* 
 it shall be the duty of the said Treasurer, with the advice and con¬ 
 sent of the Governor and Council, as aforesaid, to elect the first 
 alternative, as hereinbefore provided : Jlnd provided furthermore , and 
 it is hereby enacted, That, upon the adoption of either alternative, a 
 capital equal to ten per centum, at the least, on the gross amount of 
 each loan, shall be made from any unappropriated money in the Trea¬ 
 sury, and the same shall be invested in some safe and productive 
 stock, as aforesaid; and the interest, dividends, or profits, arising 
 therefrom, shall be invested, as aforesaid, for the eventual redemp¬ 
 tion of each of the said loans, to be negotiated as aforesaid. 
 
 Sec. 3. Jlnd be it enacted , That any act or acts, repugnant to, or 
 inconsistent herewith, be, and the same are hereby, repealed. 
 
 Jit a General Meeting of the Stockholders of the Chesapeake and Ohio 
 Canal Company f /widen by adjournment, on Monday , 25 dJune, 1828, 
 it was 
 
 Resolved, That the Chesapeake and Ohio Cana! Company do ac¬ 
 cept, ratify, and confirm the subscription, by the State of Maryland, 
 of half a million of dollars to the stock of the company, according to 
 the terms of the several acts of the State of Maryland relating there¬ 
 to, and especially the act of the said State, entitled “ An act supple¬ 
 mental to an act, entitled ‘An act for the promotion of internal improve¬ 
 ment, 5 55 which passed at the December session of the Legislature of 
 
that State, of 1827 ; and that the President and Directors of the 
 company he authorized and instructed to signify this acceptance and 
 ratification, in the mode prescribed by the said act or acts, as soon as 
 practicable. 
 
 ACT OF THE STATE OF MARYLAND. 
 
 An act to amend the “Act incorporating the Chesapeake arid Ohio Canal 
 Company—[Passed December Session , 1826.J 
 
 Sec. 1 . Be it enacted by the General Assembly of Maryland , That 
 the act, entitled “ An act incorporating the Chesapeake and Ohio 
 Canal Company,” passed by the General Assembly of Virginia, at 
 the December session, eighteen hundred and twenty-three, which has 
 already received the assent of the State of Maryland, and of the Con¬ 
 gress of the United States, as well as of the Potomac Company, shall 
 be, and the same is hereby, amended, in the manner hereinafter pro¬ 
 vided, on condition that this act receive, in like manner, the assent 
 of the necessary parties thereto. 
 
 Sec. 2. And be it further enacted , That the Chesapeake and Ohio 
 Canal Company shall have power to terminate the eastern section 
 of the said canal, at or near the town of Cumberland, on the river 
 Potomac, and thence, to extend the western section thereof, in any 
 direction that may be deemed expedient, by any other route, as well 
 as that prescribed in the act aforesaid, towards Pittsburg, on the river 
 Ohio; and, in extending the same in any direction across the divid¬ 
 ing ridge which separates the eastern and western waters, to sub¬ 
 stitute, for a tunnel and numerous locks on such part of the route, 
 inclined planes and railways, or any other artificial communication or 
 roads; and, in die event that the western section of the Chesapeake 
 and Ohio Canal shall leave the valley of the Potomac river at any 
 point below the Coal Banks, at or near the mouth of Savage, on the 
 North Branch thereof, the company shall have the power, in like 
 manner, to extend a branch from the main canal, to the said Coal 
 Bauks, at or above the mouth of Savage, and to cause such branch 
 to be constructed, of such ditnesions as their views of their own and 
 the public interest may warrant; and, for the construction of the 
 same, shall have and epjoy the same rights, privileges, and immuni¬ 
 ties, under the same restraints and conditions, in all respects, as they 
 are entitled to in relation to the main Chesapeake and Ohio Canal. 
 
 Sec. 3. And be it further enacted , That nothing in this act contain¬ 
 ed shall be held to discharge the said Company from a compliance 
 with eacli and every of the conditions of the original act, except so 
 far as the same arc expressly altered by the provisions of this act. 
 
 Sec. 4. And be it further enacted, That this act shall commence 
 and be in force as soon as it shall have received the assent of the Le¬ 
 gislature of Virginia, of the Congress of the United States, and of 
 the Potomac Company. 
 
62 
 
 
 ACT OF. THE STATE OF VIRGINIA. 
 
 An act giving the assent of this State to an act to amend the act incor¬ 
 porating the Chesapeake and Ohio Canal Company , as passed by the 
 State of Maryland.—[Passed February 26th, 1627.] 
 
 Whereas it is represented that the General Assembly of the Com¬ 
 monwealth of Maryland hath passed, at their present session, 
 an act, entitled “ An act to amend the act incorporating the Chesa¬ 
 peake and Ohio Canal Company,” in the words following, to wit: 
 [See preceding act.] 
 
 1. Be it therefore enacted by the General Assembly of this Com¬ 
 monwealth , That the assent of this Legislature, in and to the amend¬ 
 ment to “ the act incorporating the Chesapeake and Ohio Canal,” as 
 contained in the foregoing act of the General Assembly of Maryland, 
 is hereby as fully and completely given, as if the said amendatory 
 act had been passed by this present General Assembly. 
 
 2. This act shall be in force from the passing thereof. 
 
 ACT OF THE STATE OE MARYLAND. 
 
 An act further to amend the act incorporating the Chesapeake and Ohio 
 Canal Company.—[Passed December Session , \627.] 
 
 Whereas it is represented to this General Assembly, that it may tend 
 greatly to the promotion of the object of the original act incorpo¬ 
 rating the Chesapeake and Ohio Canal Company, to authorize a 
 subscription for its stockjby aliens ; and doubts have arisen wheth¬ 
 er, under said act, such stock may he held by otheys than citizens 
 or the United States, and whether Ahe stock of said Company is 
 to be regarded as real or personal property : 
 
 1. Beit enacted by the General Assembly of Maryland , That it shall 
 and may be lawful for the Commissioners, for the time being, and for 
 the President and Directors of the said Company, whensoever the same 
 shall be duly organized, agreeably to the provisions of the original 
 act aforesaid, to receive subscriptions for any number of shares of the 
 capital stosk of said Company, from any alien or aliens, w ho are 
 hereby declared competent to hold the same ; and, if, in their 
 judgment, it be necessary, to appoint an agent, or agents, to visit 
 Europe for that purpose. 
 
 2. And be it enacted , That the shares of the capital stock of said 
 Chesapeake and Ohio Canal Company shall be deemed and taken to 
 be personal estate, and, as such, to be liable to be assigned and trans¬ 
 ferred : Provided , That it shall not be lawful for any stockholder in 
 said Company to assign any share or shares, by him or her held, un¬ 
 less it be in person, or by attorney, upon the books of said Company : 
 And provided also, That no transfer or assignment shall be made, 
 
63 
 
 except from one or more whole share or shares, and not for any 
 part of such share or shares ; and that no share or shares shall, at 
 any time, be assigned or transferred, or held in trust for the use 
 and benefit, or in the name of another, whereby the said President 
 and Directors, or Stockholders, of the said Company, or any of them, 
 shall or may be challenged, or made to answer concerning any such 
 trust ; but that every person appearing, as aforesaid, to be a Stock¬ 
 holder, shall, as to others of the said Company, be, to every intent, 
 taken absolutely as such ; but, as between any trustee and the person 
 for whose benefit any trust shall be created, the common remedy may 
 be pursued. 
 
 3. And be it enacted , That this act shall commence and be in force 
 as soon as it shall have received the assent of the Legislature of 
 Virginia, of the Congress of the United States, of the Potomac Com¬ 
 pany, and of the Stockholders of said Chesapeake and Ohio Canal 
 Company, to be given at their first general meeting after the passage 
 of this act. 
 
 At a General Meeting of the Stockholders of the Chesapeake and Ohio 
 Canal Company, holdedby adjournment, on Thursday , 3d July , 1828, 
 it was 
 
 Resolved , That the act of the General Assembly of Maryland, 
 entitled, “ An act further to amend the act incorporating the Chesa¬ 
 peake and Ohio Canal Company,” passed December session, 1827, 
 be, and the same is hereby,'assented to by this Company • and that the 
 said act of Assembly be, and the same is hereby accepted and adopted 
 by this Company, as a part of their charter, so far as the same re¬ 
 lates to, or concerns, this Company, and the same is hereby acknow¬ 
 ledged to be obligatory on this Company. 
 
 ACT OF THE STATE OF VIRGINIA. 
 
 An act giving the assent of this State to an act further to amend the 
 act incorporating the Chesapeake and Ohio Canal Company , passed 
 by the Slate of Maryland.—[Passed Feb. 26, 1828.] 
 
 Whereas it is represented that the General Assembly of the Com¬ 
 monwealth of Maryland hath passed, at their present session, an act, 
 entitled “ An act further to amend the act incorporating the Chesa¬ 
 peake and Ohio Canal Company,” in the words following to wit: 
 
 [See preceding act.] 
 
 1. Be it therefore enacted by the General Assembly of this Common¬ 
 wealth, That the assent of this Legislature in and to the amendments 
 to the “ Act incorporating the Chesapeake and Ohio Canal Compa- 
 
64 
 
 ny,” as contained in the foregoing act of the General Assembly of 
 Maryland, is hereby as fully and completely given, as if the said 
 amendatory act had been passed by this present General Assembly. 
 2. This act shall be in force from the passing thereof. 
 
 ACT OF THE STATE OF PENNSYLVANIA. 
 
 An act incorporating the Chesapeake and Ohio Canal Company. [Passed 
 9th February , 1826. 
 
 Section 1 . Beit enacted by the Senate and House of Representatives 
 of the Commonwealth of Pennsylvania in General Assembly met , and it 
 is hereby enacted by the authority of the same y That the full and entire 
 assent of this Commonwealth he, and the same is hereby, given to all 
 and each of the provisions mentioned and contained in an act of the 
 Legislature of the State of Virginia, passed the twenty-seventh day 
 of January, one thousand eight hundred and twenty-four, entitled 
 u An act incorporating the Chesapeake and Ohio Canal Company,” 
 so far as the same are or may be applicable to this Commonwealth ; 
 and the said act of the State of Virginia is hereby adopted, ratified, 
 and confirmed, and enacted into a law of this Commonwealth, and all 
 and each of the provisions, conditions, and restrictions thereof, as ful¬ 
 ly and effectually, as if the same were enacted, paragraph by para¬ 
 graph, and section by section, so far as the same can apply to this 
 Commonwealth ; always, neverthelesss, subject to the exceptions, pro¬ 
 visions, and restrictions, hereinafter mentioned ; and the said act shall 
 hereafter be in full force and effect, wherever the same is applicable, 
 as well within as without this Commonwealth, as an act incorporating 
 the Chesapeake and Ohio Canal Company, for all and every of the 
 objects and purposes therein set forth and provided for, according to 
 the true intent and meaning of the Said act of the State of Virgina ; 
 an exemplification whereof shall be annexed to this act, and be pub¬ 
 lished in the same manner as the laws are usually published : and the 
 Governor shall likewise cause an exemplified copy of the said act of 
 Virginia to be deposited in the Secretary’s office of this Common¬ 
 wealth, and shall also transmit an attested copy of this act to the 
 President of the United States, and one copy thereof to the Governor 
 of Virginia, and one copy thereof to the Governor of Maryland. 
 
 Sec. 2. And be it further enacted by the authority aforesaid , That 
 this act shall have no effect, unless, within three years from and after 
 the passage hereof, the State of Maryland shall pass a law authori¬ 
 zing the State of Pennsylvania, or any company which may he for 
 that purpose incorporated by the State of Pennsylvania, to take and 
 continue a lateral canal or canals, or railway, from any point or 
 points within the territory of Pennsylvania, to, and connect with, the 
 Chesapeake and Ohio canal, within the territory of the said State of 
 Maryland, and upon the same terms and conditions, and with all the 
 rights, privileges, and powers, of every kind whatsoever,, that the 
 
Chesapeake and* Ohio Canal Company may have to make the said 
 Chesapeake and Ohio Canal, and uidess the said Chesapeake and 
 Ohio Canal Company shall assent to and accept the said law of the 
 State of Maryland, within one year after it shall have been enacted : 
 Provided , That, should the said Chesapeake and Ohio Canal be 
 located on the south side of the Potomac, at any point or points 
 below the town of Hancock, then the assent of Virginia, and the said 
 Chesapeake and Ohio Canal Company shall also be obtained in like 
 manner, before this act goes into operation, except so far as it re- 
 quires the assent of Maryland to the right to make a railway through 
 the territory of that State. 
 
 Sec. 3. And be it further enacted by the authority aforesaid , That, 
 as a condition on which this act shall pass, no greater tolls shall be 
 charged or paitl on goods, commodities, and produce, entering and 
 transported on the said Chesapeake and Ohio Canal, from such lateral 
 canals, than are charged and paid on other goods, commodities, and 
 produce, of the same kind, transported on the said Chesapeake and 
 Ohio Canal: And provided, further. That the aforesaid Chesapeake and 
 Ohio Canal Company shall extend the Chesapeake and Ohio Canal 
 to, and terminate the same at, the city of Pittsburg. 
 
 Sec. 4. And be it further enacted by the authority aforesaid , That 
 the said Chesapeake and Ohio Canal Company shall have full power 
 and authority to alter and change the route of the westerly section of 
 the said canal, so that the same may commence at the town of Cum¬ 
 berland, situated near the junction of Wills’ creek, with the north 
 branch of the Potomac, and he continued from thence, by the valley 
 of Wills’ creek and Castleman’s river, to the Youghiogeny. and from 
 thence to the city of Pittsburg : Provided , That the United States’ 
 Board of Internal Improvement, oi* a majority thereof, should deem 
 and report that route to be the best. 
 
 Sec. 5. And be it further enacted by the authority aforesaid , That, 
 should the United States of America subscribe to the stock of the 
 said Chesapeake aid Ohio Canal Company, the said Company shall, 
 within six months after receiving the sum subscribed, commence the 
 western section of said canal, at such point or points as may be deem¬ 
 ed most advantageous to the interests of the said Company : and it 
 shall be their duty to apportion at least one half of the subscription 
 of the United States to the western section of the said canal. And 
 whatever amount of stock may be subscribed by the citizens of Penn¬ 
 sylvania, shall be expended wholly on the western section, unless au¬ 
 thority is given to the said company, by the Pennsylvania subscribers, 
 to expend their subscriptions differently : and in case of failure of the 
 said company to comply with the provisions herein set forth, this act 
 shall ce.ase to have any force or effect whatever. 
 
 Sec. 6. And be it further enacted by the authority aforesaid , That, 
 if the nett annual dividend of said company shall, for any two years 
 in succession, exceed the amount of fifteen per cent, such excess shall 
 be equally applied, by the President and directors, to the accommoda- 
 tipn of the inhabitants of the shores of the Youghiogeny and Monon- 
 gahela rivers, and the country drained by the tributary streams there- 
 
66 
 
 of, now navigable, or which may hereafter become so, in the same 
 manner, in* proportion to the distance, as is directed for the accommo¬ 
 dation of the inhabitants of the shores tif the Potomac and its tributary 
 streams, by the eleventh section of an act of the State of Virginia, 
 entitled 6( An act incorporating the Ohio and Chesapeake Canal Com- 
 pany,” passed the twenty-seventh day of January, one thousand eight 
 hundred and twenty-four. 
 
 Sec. 7. And be it further enacted by the authority aforesaid , That 
 it shall and may be lawful for the said Chesapeake and Ohio Canal 
 Company, at any place within this Commonwealth, on the route of 
 the said canal, to sell or lease the use of the water contained therein, 
 or in any embankment, dike, pond, or other improvement connected 
 therewith, to any individual or individuals, or private company or 
 companies, for that purpose incorporated by the State # of Pennsylva¬ 
 nia, for mills, or any other water works, or for irrigating any lands, 
 or for supplying bleach grounds, tan-pits, or brick-yards, and the 
 profits or rents resulting therefrom to take and receive, to and for the 
 use and benefit of the said corporation, in addition to the tolls and 
 profits allowed to be taken by the act of Virginia : Provided , That the 
 navigation of the said canal be not thereby impeded or obstructed : 
 And provided further , That the* said Chesapeake and Ohio Canal 
 Company shall not, at any time, be, directly or indirectly, engaged 
 or concerned in any banking, merchandising, milling, or the erecting 
 of mills, manufacturing, or mining, or in any other business whatso¬ 
 ever, except such as may be necessary and proper for the construction 
 of such canal, and appurtenances, and the performance of the several 
 functions of a canal company. 
 
 Sec. 8. And be it further enacted by the authority aforesaid 9 That, 
 as a further condition on which the assent of this State is given to the 
 Virginia act, aforesaid, that so far as regards the territory of Penn¬ 
 sylvania, whenever the said canal shall cross any public or private 
 laid out road or highway, or shall divide the ground of any person or 
 persons, so as to require a ford or bridge to cross 4he same, the jury, 
 who shall inquire of the damages to be sustained, in manner directed 
 by the fifteenth section of the Virginia act, shall find and ascertain 
 whether a passage across the same shall be admitted or maintained by 
 a ford or bridge ; and, on such finding, the said Chesapeake and Ohio 
 Canal Company shall cause a ford to be rendered practicable, or a 
 bridge fit for the passage of carts and waggons to be built, and for¬ 
 ever hereafter maintained and kept in repair, at all and every places 
 so ascertained by the said jury, at the cost and charges of the said 
 company; hut nothing herein contained shall prevent any person 
 from erecting and keeping in repair, any foot or other bridge across 
 the said canal, at his own expense, when the same shall pass through 
 his ground ; Provided, The same shall he of such height above the 
 water, as shall be usual in the bridges erected by the company ; And 
 provided , also , That such foot or other bridges, so to be erected by the 
 owners of such lands, shall not interfere with any of the locks, build¬ 
 ings, or other works of the company, or with the navigation of the 
 said canal. 
 
67 
 
 Sec. 9. And be it further enacted by the authority aforesaid , That 
 the assent of the Legislature of this Commonwealth to the said act of 
 the Legislature of Virginia, is given and granted upon the further 
 express conditions, that any mesne process which may be issued 
 against the said company, may be served on any toll gatherer, direc¬ 
 tor, or other officer of the company; and such service shall be held 
 good, valid, and effectual, as a service of such process upon the said 
 Chesapeake and Ohio Canal Company ; and that said company shall . 
 annually report to the Legislature of Pennsylvania the progress they 
 may make in constructing the said canal: and also an annual abstract 
 of their accounts, certified by the oath of the President of the said 
 company, shewing the amount of capital stock actually paid in, and 
 the sums deposited with the Treasurer for contingent and current ex¬ 
 penses, and the profits which may have accrued, and the dividends 
 made or declared during the preceding year. 
 
 At a General Meeting of the Stockholders of the Chesapeake and Ohio 
 Canal Company , /widen by adjournment , on Saturday , 2i st June, 
 1828, it was 
 
 Resolved ♦ That, whenever the Western section of the Chesapeake 
 and Ohio Canal shall be constructed, the Western termination thereof 
 shall be at Pittsburg. 
 
 At a Meeting of the President and Directors of the Chesapeake and Ohio 
 Canal Company , liolden 2 6th June , 1828, it was 
 
 Resolved unanimously , That the route and site surveyed by the 
 United States’ Engineers, and by Messrs Gcddes and Roberts, and 
 communicated to Congress by the Executive of the United States, at 
 various times, so far as the same correspond and agree, be adopted as 
 the line of the Chesapeake and Ohio Canal, below Cumberland, on 
 the river Potomac, with such inconsiderable variations therefrom as 
 it may be found expedient for the President and Directors to adopt, 
 with the advice of their Chief Engineer, in placing the same under 
 contract, and in the execution of the contracts for completing the 
 Canal. 
 
 Extract from an act of the State of Maryland , passed at December ses¬ 
 sion, 1825, entitled “ An act to incorporate the Susquehannah and Pa- 
 tapsco Canal Company. 19 —[Passed 8th March, 1826.] • 
 
 “ Section' 11 . And be it enacted , That the State of Pennsylvania, 
 or any company which may be for that purpose incorporated by the 
 said State, shall be, and is hereby, authorized and empowered to 
 
68 
 
 take and continue a lateral canal or canals, or a rail-way, from any 
 point or points within the territory of said State, to connect with the 
 Chesapeake and Ohio Canal, within the territory of this State, upon 
 the same terms and conditions, and with all the rights, privileges, 
 and powers, of every kind whatsoever, that have been granted to the 
 Chesapeake and Ohio Canal Company : Provided , That the State of 
 Pennsylvania shall, within three years from and after the passage of 
 this act, assent to, and confirm this charter, so that the same may 
 have full effect and operation within the limits of that State.” 
 
 . ACT OF THE STATE OF PENNSYLVANIA, 
 
 Giving the assent of this State to an act of the General Assembly of 
 
 Maryland, entitled “ An act to incorporate the Susqnehannah and 
 
 Patapsco Canal Company.”—[Passed 7th April, 1826.] 
 
 Sect. 1 . Be it enacted by the Senate and House of Representatives 
 of the Commonwealth of Pennsylvania , in General Assembly met , and 
 it is hereby enacted by the authority of the same , That the full and en¬ 
 tire assent of this Commonwealth be, and the same is hereby, given 
 to all and each of the provisions mentioned and contained in an act of 
 the General Assembly of Maryland, passed the eighth of March, one 
 thousand eight hundred and twenty-six, entitled An act to incor¬ 
 porate the Susquehannah and Patapsco Canal Company,” so far as 
 the same may be applicable to this Commonwealth ; and the said act 
 of the General Assembly of Maryland is hereby ratified, adopted, and 
 •confirmed, and enacted into a law of this Commonwealth, and all and 
 each of the provisions, conditions, and restrictions thereof, as fully 
 and effectually as if the same were enacted paragraph by paragraph, 
 and section by section, so far as the same can apply to this Common¬ 
 wealth ; and the said act shall hereafter be in full force and effect 
 wherever the same is applicable, as well within as without this Com¬ 
 monwealth, as an act incorporating the Susquehannah and Patapsco 
 Canal Company, for all and every of the objects and purposes there¬ 
 in set forth and provided for, according to the true intent and mean¬ 
 ing of the said act of the General Assembly of Maryland ; an exem¬ 
 plification whereof shall be annexed to this act, and be published in 
 the same manner as the laws usually are published ; and the Gover¬ 
 nor shall likewise cause an exemplified copy of the said act of the 
 General.Assembly of Maryland, to be deposited in the Secretary’s 
 office of this Commonwealth, and shall also transmit an attested copy 
 of this act to the Governor of the State of Maryland. Provided , 
 That, Jf the State of Maryland shall, when hereafter requested by the 
 •State of Pennsylvania, withhold her consent to the said State, or any 
 company incorporated by the Legislature thereof, to make a canal or 
 rail-way from the Susquehannah through the territory of Maryland, 
 by the route of the Cumberland Valley to the Potomac, then the Le¬ 
 gislature of Pennsylvania reserves the power to repeal this act. 
 
69 
 
 Sec. 2. And be it further enacted by the authority aforesaid , That 
 nothing in this act contained shall be so construed as to authorize the 
 said ••The Susquehannah and Patapsco Canal Company” to erect 
 or place any dam or dams, or other device, or works, in the river 
 Susquehannah, in a way to injure the navigation of said river; and 
 should the said company at any time hereafter erect or place any such 
 dam, device, or other works, in the said river, the Legislature of 
 Pennsylvania hereby reserves the right to repeal, at any time there¬ 
 after, this act, and to resume the privileges hereby granted. 
 
 Sec. 3. And be it further enacted by the authority aforesaid , That 
 the said Susquehannah and Patapsco Canal Company are hereby re¬ 
 quired to connect with the river Susquehannah the canal hereby au¬ 
 thorized to be made, by navigable lateral canals and locks, of the 
 same dimensions as the main canal, at the most eligible point for fa¬ 
 cilitating the passage of boats and other craft from the Susquehannah 
 and Patapsco Canal into the Susquehannah river, between the head 
 of the tide and Havre de Grace, and at some point opposite or near 
 to the mouth of the Conestoga, and also at or near the town of Co¬ 
 lumbia : and no greater rate of tolls per mile shall be charged on any 
 boat, ark, craft, or other vessel, navigating said canal from York 
 Haven, or on any other point on said canal above tide, to any point 
 out of the said canal into the Susquehannah river or Chesapeake Bay, 
 than shall be charged on the same description of vessels navigating 
 the said canal from York Haven to the Patapsco, and the ascending m ■ 
 navigation shall be subject to the same regulations ; and if the said 
 “ The Susquehannah and Patapsco Canal Company” shall fail to 
 construct said lateral canal, or shall neglect to keep the same in re¬ 
 pair, so as to afford atall times a good ascending and descending navi¬ 
 gation for boats or other craft navigating from the Susquehannah to 
 the Susquehannah, or if the said company shall use the waters of said 
 canal or canals for any other purpose than that of navigation, or if • 
 they shall directly or indirectly engage in any moneyed, commercial, 
 manufacturing, or mining concern, within the State of Pennsylvania, 
 or in any other business whatever within said State, except such as 
 may be necessary or proper for the constructing of such canals and 
 appurtenances, and the performance of tjie several functions of a ca¬ 
 nal company, or shall otherwise contravene the provisions of this act, 
 that then, and in either case, the Legislature of Pennsylvania shall 
 have full power to alter or repeal this act, and annul the privileges 
 hereby granted to said Susquehannah and Patapsco Canal Company . 
 
 Sec. 4. And be it further enacted by the authority aforesaid , That 
 this act shall cease to have validity if the said Susquehannah and Pa 
 tapsco Canal Company shall not commence the said canal on or be¬ 
 fore the first day of January, one" thousand eight hundred and thirty - 
 one, and shall not complete the canal from York Haven to some point 
 between the head of tide and Havre de Grace, on or before the first of 
 January, eighteen hundred ami forty-one. 
 
70 
 
 ACT OF THE CONGRESS OF THE UNITED STATES, 
 
 An act to amend and explain an act , entitled “ An act confirming an 
 act of the Legislature of Virginia , incorporating the Chesapeake and 
 Ohio Canal Company , and an act of the State of Maryland , for the 
 same purpose."—{Approved May 23, 1828.] 
 
 Sec. 1. Be it enacted by the Senate and House of Representatives of 
 ihe United States of America in Congress assembled, That the assent 
 already given hy the United States to the charter of the Chesapeake 
 and Ohio Canal Company, hy an act of Congress, entitled « An act 
 confirming an act of the Legislature of Virginia, entitled an act in¬ 
 corporating the Chesapeake and Ohio Canal Company ; and an act 
 of the State of Maryland confirming the same,” shall not be impaired 
 by any change of the route of the said Canal, from or above the town 
 •of Cumberland, on the river Potomac, or the distribution thereof into 
 two or more sections, at any time hereafter, or any change in the di¬ 
 mensions of that part of the present Eastern section, extending from 
 Cumberland, or the mouth of Wills’ creek, to the mouth of Savage, 
 at the base of the Alleghany, or any substitution which the interest of 
 the Chesapeake and Ohio Canal Company may, in the opinion of the 
 Company, require to be made, of inclined planes, rail-ways, or an 
 artificial road for a continued Canal through the Alleghany moun¬ 
 tain, in any route which may be, by the Company, finally adopted 
 therefor, between the town of Cumberland and the river Ohio. 
 
 Sec. 2. And be it further enacted , That to obviate any possible ambi¬ 
 guity that might arise in the construction of the second section of the 
 act of Congress aforesaid, the authority, by that act designed to be 
 given to the States of Maryland and Virginia, or to any Company 
 incorporated by either or both of those States, to extend a branch 
 from the said Canal, or to prolong the same, from the termination 
 thereof, by a continuous canal, within or through the District of Co¬ 
 lumbia, towards the territory of either of those States, shall be deem¬ 
 ed and taken ^to be as full and complete, in all respects, as the autho¬ 
 rity granted by that act to the Chesapeake and Ohio Canal Compa¬ 
 ny to extend the main stem of the said Canal, within the said Dis¬ 
 trict; or the authority reserved to the Government of the United 
 States to provide for the extension thereof, on either or both sides of 
 the river Potomac, within the District of Columbia : Provided , That 
 nothing herein contained shall impair the restriction in the charter of 
 the Chesapeake and Ohio Canal Company, designed to protect the 
 Canal from injury, by the prolongation thereof, or by any branch 
 therefrom. 
 
 Sec. 3. And be it further enacted , That the act of the Legislature of 
 Maryland, which passed at their December session, of one thousand 
 eight hundred and twenty-seven, entitled “ An act further to amend 
 the act incorporating the Chesapeake and Ohio Canal Company,” be, 
 and the same is hereby, confirmed, so far as the assent of Congress 
 may be deemed necessary thereto. 
 
7 
 
 ACT OF THE CONGRESS OF THE UNITED STATES, 
 
 An act authorizing a subscription to the stock of the Chesapeake and 
 Ohio Canal Company —[ Approved , 24th May, 1828.] 
 
 Sec. 1 . Be it enacted by the Senate and House of Representatives of 
 the United States of America in Congress assembled , That the Secre¬ 
 tary of the Treasury be, and he is hereby, authorized and directed to 
 subscribe, in the name and for the use of the United States, for ten 
 thousand shares of the capital stock of the Chesapeake and Ohio 
 Canal Company, arid to pay for the same, at such times, and in such 
 proportions, as shall be required of and paid by the stockholders, gene¬ 
 rally, by the rules and regulations of the Company, out of the divi¬ 
 dends which may accrue to the United States upon their bank stock 
 in the Bank of the United States : Provided , That not more than one 
 fifth part of the sum, so subscribed for the use of the United States, 
 shall be demanded in any one year after the organization of the said 
 Company; nor shall any greater sum he paid on the shares so sub¬ 
 scribed for, than shall be proportioned to assessments made on indi¬ 
 vidual or corporate stockholders : And. provided, moreover , That, for 
 the supply of water to such other canals as the State of Maryland, or 
 Virginia, or the Congress of the United States, may authorize to be 
 constructed, in connexion with the Chesapeake and Ohio Canal, the 
 section of the said canal leading from the head of the Little Falls of 
 the Potomac river, to the proposed basin, next above Georgetown, in 
 the District of Columbia, shall have the elevation, above the tide of 
 the river at the head of the said Falls, and shall preserve, throughout 
 the whole section aforesaid, a breadth at the surface of the water, of 
 not less than sixty feet, and a depth, below the same, of not less than 
 five feet, with a suitable breadth at bottom. 
 
 Sec. 2. And be it further enacted , That the said Secretary of the 
 Treasury shall vote for the President and Directors of the said Com 
 pany, according to such number of shares as the United States may 
 at any time hold in the stock thereof, and shall receive, upon the said 
 stock, the proportion of the tolls which shall, from time to time, be due 
 to the United States, for the shares aforesaid ; and shall have and en¬ 
 joy, in behalf of the United States, every other right of a stockholder 
 in the said company. 
 
 ACT OF THE CONGRESS OF THE UNITED STATES 
 
 An act to enlarge the powers of the several Corporations of the District 
 of Columbia , and for other purposes. —[ Approved , May 24, 1828.] 
 
 Be it enacted by the Senate and House of Representatives of the Unit - 
 ted States of America in Congress assembled , That the Corporation of 
 Washington, the Corporation of Georgetown, and the Corporation 
 of Alexandria, within the District of Columbia, shall, severally, have 
 
72 
 
 full power and authority to subscribe and pay for shares of the stock 
 of the Chesapeake and Ohio Canal Company; and all such subscrip¬ 
 tions as shall have been already made by either of the said Corpora 
 tions, shall, and the same are hereby declared to he valid and bind¬ 
 ing on the said Corporations, respectively. 
 
 Sec. 2. And be it further enacted, That the said Corporations shall 
 severally, have power and authority, from time to time, as the same 
 may be deemed' by them, respectively, either necessary or expedient, 
 to borrow money, at any rate of interest not exceeding six per 
 centum per annum, to pay their respective subscriptions, and the in¬ 
 terest accruing thereon, to the amount which they, have subscribed, 
 or shall hereafter subscribe. 
 
 Sec. 4. And be it further enacted , That the said Corporations are, 
 respectively, empowered to employ an agent or agents, for the pur¬ 
 pose of obtaining subscriptions to the loan or loans authorized by this 
 act, or of selling, from time to time, the certificates of stock which 
 may be created in pursuance thereof, and to fix the compensation of 
 such agent or agents, which they shall respectively pay, as well as 
 all other expenses attending the said loans, out of the proceeds there¬ 
 of, or of any other funds wliicli they may respectively provide. 
 
 Sec. 5. And be it further enacted , That a tax, at the rate of one 
 per centum; and thirteen hundredths of one per centum, on the assess¬ 
 ed value of the real and personal estates within the City of Washing¬ 
 ton, as shall appear by the appraisement thereof, made under the au¬ 
 thority of the Corporation, or of the several acts of Congress, 
 hereinafter declared to be revived and in force, within the said Cor¬ 
 poration, to be existing at the time hereinafter limited for the collec¬ 
 tion of the said tax ; and at the rate of fifty-six hundredths of one per 
 centum on the assessed value of the real and personal estate within 
 the town of Georgetown, as shall appear by the appraisement thereof, 
 made # under the authority of the Corporation, or of the several acts of 
 Congress, hereinafter declared to be revived and in force, within the 
 said corporation, to be existing at the time hereinafter limited for the 
 collection of the said tax ; and at the rate of fifty-eight hundredths bf 
 one per centum on the assessed value of the real and personal estate 
 within the town of Alexandria, as shall appear by the appraisement 
 thereof, ma*de under the authority of the corporation of the sa*id town, 
 or of the several acts of Congress, hereinafter declared to be revived 
 and in force, within the said corporation, to be existing at the time 
 hereinafter limited for the collection of the said tax ; be, and the same 
 is hereby, imposed and assessed on the real and personal estate lying 
 and being in the said city and towns : and, upon the failure of the said 
 corporations, or of any of them, to pay, into the Treasury of the Unit¬ 
 ed States, ninety days before the same shall become due, to the holder 
 of the shares or certificates of such loan or loans, as aforesaid, accord¬ 
 ing to the terms and conditions thereof, the sum or sums which they, 
 or any of them, shall have respectfully stipulated to pay at the expira¬ 
 tion of the period aforesaid, so that the same shall not be ascertained 
 beforehand to be in readiness to meet the demand or claim about to 
 
I 
 
 73 
 
 arise on the shares or certificates of the said loan—the President of 
 the United States shall be, and lie is hereby, empowered to appoint a 
 collector or collectors, whose duty it shall be to proceed and collect 
 the tax imposed, as above, on the real and personal estate in the said 
 city and town, or either of them, the corporation or corporations of 
 which shall have so failed to pay, as aforesaid, in advance, the sum or 
 sums about to become due and demandable as aforesaid, or any part 
 thereof remaining unpaid, as aforesaid, into the Treasury,ninety days 
 in advance; such part, in case a part only be so in arrear, to be ra¬ 
 tably and equally assessed, levied, and collected, upon the property 
 chargeable as aforesaid, with the said tax, within the said city and 
 towns, or either of them, making such default in paying as required, 
 ninety days in advance, as aforesaid : the appraisement or assessment 
 of the value of the said estates, preparatory to the collection of the 
 said tax, if not previously made by the said corporation, to be made 
 in the mode prescribed, as aforesaid, in the several acts of Congress, 
 hereby revived and put in operation : Provided , That, if satisfactory 
 evidence be afforded the President of the United States, by the seve¬ 
 ral corporations aforesaid, that they are proceeding, in good faith, 
 to raise and pay, in due time, their portions, respectively, of the said 
 loan or loans, and will be competent to raise the same by the means 
 on which they rely, he shall be, and he is hereby, empowered to re¬ 
 strain such collector or collectors from proceeding to collect the said 
 tax within the corporation affording the evidence aforesaid, until the 
 expiration of the ninety days aforesaid, when, if the amount of the 
 said tax be not actually paid, the collection thereof shall proceed, 
 without further delay, on notice to the collector of such default. 
 
 Sec. 6. And be it further enacted , That the collector or collectors, 
 who may be appointed as aforesaid, shall give bond, with good and 
 sufficient security, for the faithful performance of the duties required 
 by this act, and shall possess all the powers, be subject to all the ob¬ 
 ligations, and proceed, in all respects, in the discharge of his or their 
 duties, in collecting the said tax, as the several collectors possessed, 
 were subject to, and were required to do, by an act, entitled “ An 
 . act to provide additional revenues for defraying the expenses of Go¬ 
 vernment, and maintaining the public credit, by laying a direct tax 
 upon the District of Columbia,” approved the 27th of February, one 
 thousand eight hundred and fifteen, and by the several acts of Con¬ 
 gress, therein referred to, or which were subsequently passed, in or¬ 
 der to alter or amend the same; all of which acts, for the effectual 
 fulfilment of the purposes of this act, and according to the tenor and 
 intent thereof, are hereby declared to be revived, and in full force, 
 within the limits of the several corporations aforesaid. • 
 
 Sec. 7. And be it further enacted , That the tax imposed by this 
 act, shall be continued and collected, from time to time, according to 
 the provisions and conditions of this act, aryJ of the several acts afore¬ 
 said, so long as the proceeds thereof may, by any possibility, be re¬ 
 quired, to meet the payment of the several loans authorized as afore¬ 
 said : Provided 9 however , That all or either of the said corporations 
 8 
 
74 
 
 may, in the negotiation of such loan or loans, as they or either of 
 them, shall deem it expedient to make, in pursuance of the authority 
 vested in them by this act, stipulate such terms or conditions, for the 
 payment of the interest, or the redemption of the principal sum there¬ 
 of, as shall dispense with the system of taxation provided by this act* 
 Sec. 8. Jlnd be it further enacted, That, in the event that any loan 
 or loans shall be negotiated by the said corporations, or any one of 
 them, to the extent, in the whole or in part, of the subscription of one 
 or all of the said corporations, to the stock of the Chesapeake and 
 Ohio Canal Company, in conformity with the provisions of this act, 
 and based upon the system of taxation therein provided ; a copy or 
 copies of the contract or contracts, for any and all such loans, shall, 
 as soon as practicable, after the execution thereof, be deposited, either 
 by the corporation or corporations contracting shch loan or loans, 
 or by the creditor or creditors interested therein, with the Secretary 
 of the Treasury ; and, out of all such sums as shall be paid, by the 
 respective corporations, in advance, as aforesaid, on account of their 
 several contracts, or, as shall be levied and collected, in manner here¬ 
 inbefore provided, the holders of the certificates of any such loan 
 shall be entitled to receive, at the Public Treasury, such amount as 
 may be due to them, respectively ; and, on the occurrence of any de¬ 
 ficiency in the sum or sums, voluntarily paid in, or assessed and col¬ 
 lected, within the said corporations, respectively, for the payment of 
 their respective creditors, the extent of such deficiency shall be as¬ 
 certained by the Secretary of the Treasury, from a reference to the 
 terms of the loan or loans, in relation to which such deficiency may 
 occur; and, being so ascertained, and published in some one or more 
 newspapers, printed in the District of Columbia, the Secretury of the 
 Treasury shall instruct the proper collector to proceed to collect, and 
 pay into the Public Treasury, the said amount, with all lawful charges 
 attending the same, according to such further ratable assessment, 
 upon the.estates and property within the jurisdiction of the corpora¬ 
 tion in arrear, according to the provisions of this act, and of the se¬ 
 veral acts referred to therein, as shall be sufficient to supply such as¬ 
 certained deficiency ; and, on the completion of such collection, the 
 holder or holders of the certificates of the stock of the corporation 
 shall be entitled to receive such amount as may have been found due, 
 and unprovided for, by the sums before paid in, or collected, on ac¬ 
 count of such corporation. 
 
 [Under the authority of the foregoing acts, the following were ap¬ 
 pointed commissioners for receiving subscriptions to the stock of the 
 Chesapeake and Ohio Canal Company, on the 21st May, 1826 : 
 
 By the President of the United States : 
 
 Samuel H. Smith, 1 
 
 Anthony C. Cazenove, t For the District of Columbia. 
 Clement Smith, J 
 
 } 
 
?5 
 
 By the Governor of Virginia 
 
 John C. Hunter, 
 
 William Ellzey, 
 
 Richard H. Henderson. 
 
 By the Governor of Maryland 
 Samuel Sprigg, 
 
 Frisby Tilghman, 
 
 Philip E. Thomas,] 
 
 AN ACT (of the Corporation of WashingtonJ to authorize a subscrip¬ 
 tion to the capital stock of the Chesapeake and Ohio Canal Com¬ 
 pany. 
 
 Be it enacted by the Board of Aldermen and Board of Common Coun¬ 
 cil of the city of Washington , That on the opening of the books 
 for receiving subscriptions to the capital stock of the Chesapeake and 
 Ohio Canal Company, the Mayor be, and he is hereby authorized 
 to subscribe for ten thousand shares of the capital stock of said com¬ 
 pany, in the name and for the benefit of this Corporation. 
 
 Approved, September 13th, 1827. 
 
 JOSEPH GALES, Jr. 
 
 Mayor. 
 
 -— I 
 
 AN Ordinance (of the Corporation of Georgetown, J authorizing a 
 subscription for two thousand five hundred shares of the capital 
 stock of the eastern section of the Chesapeake and Ohio Canal 
 Company. 
 
 Be it ordained by the Board of Aldermen and Board of Common 
 Council of the Corporation of Georgetown , That the Mayor be, 
 and he is hereby, authorized to subscribe, in behalf of this Corpora¬ 
 tion, for two thousand five hundred shares of the capital stock of the 
 eastern section of the Chesapeake and Ohio Canal Company, so soon 
 as the books for receiving subscriptions therefor shall be opened, and 
 to meet the instalment due at the period of subscription, the Clerk is 
 hereby authorized and required to pay to the order of the Mayor, the 
 sum of two thousand five hundred dollars, out of any unappropriated 
 money in the Treasury. 
 
 WILLIAM JEWELL, . 
 
 President Board Common Council . 
 
 JAMES DUNLOP, 
 Recorder, and President Board of Aldermen . 
 
 Approved 22d September, 1827. 
 
 ' JOHN COX, 
 
 • Mayor . 
 
 True copy from the record, Test: 
 
 JOHN MOUNTZ, Clerk. 
 
I 
 
 76 
 
 AN ACT authorizing a Subscription , by the Common Council of Alex- 
 andria 9 for Stock of the Chesapeake and Ohio Canal Company. 
 
 Sec. 1. Be it enacted by the Common Council of Alexandria , That 
 the President of the Common Council be and he is hereby authorized 
 and required, for and on behalf of the Common Council of Alexan¬ 
 dria, to subscribe two thousand five hundred shares, of one hundred 
 dollars each, to the capital stock of the Chesapeake and Ohio Canal 
 Company, which subscription shall be binding and obligatory on the 
 Corporation when the Congress of the United States shall have au¬ 
 thorized a subscription for not less than ten thousand Shares of the 
 capital stock of the said company. 
 
 Sec. 2. And be it further enacted, That this Act shall commence 
 and be in force from and after the passing thereof. 
 
 Passed in council this tenth day of November, eighteen hundred 
 and twenty-seven. 
 
 JOHN C, VO WELL, Pres . C. C. 
 
 Approved, 
 
 THOMPSON F. MASON, Mayor . 
 
 Test, 
 
 J. P. THOMPSON, Clerk. 
 
 Office of the Chesapeake and Ohio Canal Company , 
 f Washington, April 24 th, 1830. 
 
 1 herJfty certify, that on the 2d day of October, 1827, the amount 
 of Stock subscribed for (unconditionally subscribed for) in the Che¬ 
 sapeake and Ohio Canal Company, exceeded the sum of one million 
 and five hundred thousand dollars, over and above the subscriptions 
 payable in the stock and debts of the late Potomac Company. 
 
 JOHN P. INGLE, 
 Clerk Chesapeake and Ohio Canal Co* 
 
 B. 
 
 The evidence that the left bank of the Potomac river bad been ap¬ 
 propriated to the continuous canal, by which the entire fall of more 
 than six hundred feet between Cumberland and the tide was to be 
 overcome, was submitted to the Chancellor by the council who first 
 addressed the Chancellor in behalf of the Chesapeake and Ohio 
 Canal Company, and consisted of: 
 
 1st. The report of the Principal Engineer of the Board of Public 
 Works of Virginia, submitted to the Legislature of that State by 
 the Governor, on the 27th day of December, 1820. 
 
 2d. Of the report of the Commissioners appointed by the Legisla¬ 
 tures of Maryland and Virginia to survey the river Potomac, and 
 to report a route and an estimate of the cost of a canal from tide 
 
77 
 
 water to the highest point to which the improvement of the naviga¬ 
 tion of the river could be carried. 
 
 3d. Of the 1st and 2d reports of the United States’ Board of In¬ 
 ternal Improvement, the last of which was accompanied by maps, 
 delineations, and estimates of the route, dimensions,-and cost, of a 
 canal from Georgetown to Pittsburg, communicated to Congress on 
 the 14th day of February, 1825, and the 7th day of December, 1826, 
 respectively published by their order, and referred to in those prV 
 ceedings of the citizens of Baltimore which preceded the application 
 for the act of incorporation of the Baltimore and Ohio Rail Road 
 Company. 
 
 4th. Of the re-examination and revision of the route, plan, and es¬ 
 timates of the United States’ Board of Internal Improvement, made 
 pursuant to an order of the President of the United States, at the 
 instance of many members of the House of Representatives, and com¬ 
 municated by message to the House of Representatives, on the 18th 
 of January, 1828, in a report to the Department of War, by two 
 Civil Engineers, Nathan S. Roberts, and James Geddes, which re¬ 
 port was accompanied by maps and plans, and published by order 
 of the House of Representatives. 
 
 This evidence is contained in the following extracts from those 
 reports : 
 
 First. 
 
 “ On the 30th of the 6th month (June) 1820, I commenced the 
 “ examination. 
 
 “ The examination of the river from Cumberland downwards, 
 “ was commenced on the 10th of the 7th month, (July 18, 1820.) 
 
 “ Just below Shepherdstown, a long, shallow ripple occurs. 
 “ The navigation is then good to the head of the long canal , at the 
 “ beginning of the Shenandoah Falls. 
 
 ** About one-half a mile below the ferry, (Harper’s Ferry) arc two 
 “ short canals , called by the boatmen, Bullring Falls. 
 
 “ The dam of the Seneca Falls requires repairing, so as to turn 
 “ more water into the canal. 
 
 “ The greatest obstruction to the navigation any where below 
 “ Williamsport, in the present state of the water, is at the Great Falls.” 
 “ The dam requires repairing and extending, so as to guide at least 
 u six or eight inches more water in the canal. 
 
 “ The bed of the river from the Great Falls to the head of the 
 ** Little Falls Canal is generally very rough. 
 
 “ The current for some distance below the hills is so rapid in high 
 “ water, and likewise so deep, that it renders useless the setting poles : 
 “ and the unevenness of the crags on shore makes it extremely difli- 
 “ cult and dangerous to carry a towing line over them. 
 
 “ At Stubblefield Falls, the pass is safe for descending boats, 
 “ except that the rapidity of the current over the uneven bottom 
 “ produces a roughness, that when full loaded, causes them to ship 
 
78 
 
 water ; but the angle of ascent is so great, and the sluice being 
 situated in the middle of the river where no advantage can be 
 ** derived from towing, it is in Vain to think of ascending with any 
 44 thing like a full load. 
 
 44 But when*the powers of art have been exerted to the utmost 
 “ extent, to produce an easy navigation in the bed of a stream, still 
 “ it must hold a very inferior grade to that of an independent canal; 
 44 because the natural fall of the river must be overcome by the labor 
 44 of man ; and if the whole fall of a river is great in proportion to 
 “ its length, it will require a great number in proportion to the ton- 
 44 nage : and therefore must be very expensive compared to a canal 
 44 finished with locks, where the loaded boats are drawn on level water 
 44 by the labor of horses. But this kind of improvement requires large 
 44 funds, and should not be undertaken until the period arrives that 
 44 gives a reasonable prospect of remuneration from the trade that 
 44 maybe carried on through its channel. 
 
 “ The transportation, however, on such a canal, is so much cheaper 
 4( than by any other means of internal improvement, that it may 
 44 happen, and I believe it sometimes does happen, that such a period 
 46 arrives, before those concerned think of making a single calculation 
 46 on the subject. Knowing the great superiority of this mode of 
 46 improvement, and believing it may possibly be some time adopted 
 44 in the Potomac, I have so far made myself acquainted with the 
 44 grounds adjacent to the river, as to enable me to form some esti- 
 46 mate of the expense of an independent canal from Cumberland to 
 44 the Great Falls. From Cumberland to the Great Falls is 176 
 44 miles. The fall in this distance is 572 feet. It is to be remcm- 
 44 bered, that canals conducted on low levels along the ravines of a 
 44 river, have no deep vallies or ravines to cross, as they must ncces- 
 44 sarily have on high levels in an uneven country, and therefore 
 44 the great embankments and elevated aqueducts which constitute 
 44 the largest items of expense on many canals, are avoided.” 
 
 “ On such a canal as this, the actual cost of transportation for a 
 44 barrel of flour from Cumberland to the Great Falls, would not 
 44 exceed 15 cents, nor a bushel of coal 6 cents, and other articles in 
 “ proportion, provided the boats were supplied with one-quarter 
 44 back load of plaster of Paris, or any thing else at the low price of 
 44 g3 per ton.” 
 
 44 Having given this description of the river, and the foregoing 
 44 estimates, it must remain for the company after consulting the 
 44 state of their funds, and other circumstances, over which I have 
 44 no control, to determine on the most proper mode of expending 
 44 money in future on this very important river.” 
 
 The preceding report made a part of and was printed with a mes¬ 
 sage from the Governor of Virginia to the House of Delegates, on the 
 27th of December, 1820. 
 
79 
 
 Second. 
 
 44 To his Excellency, the Governor of Jtfaryland: 
 
 «The commissioners appointed by the law of Virginia, and the 
 44 resolutions of Maryland, of the year 1821, jointly to examine the 
 44 affairs of the Potomac Company, the state of the navigation of the 
 44 river Potomac, its susceptibility of improvement, and to make re- 
 44 port, whether the said Company had complied with the terms of its 
 “ charter, granted by the two States, and its ability to comply with- 
 u in a reasonable time, and whether any, and what aid should be 
 44 given to the said Company, and what would be the best means of 
 44 effecting an improvement in the navigation of the said river, re- 
 44 port: 
 
 [EXTRACT FROM THE SAME.] ; 
 
 46 Upon a full view of the different plans, therefore, it cannot for a 
 44 moment be doubted, but that the adoption of a regular canal, out of 
 44 the river, though following its ravine , will be the most useful and 
 44 durable improvement, and when the* advantages and cost of each 
 44 mode, (that by 4 sluices,’ by ‘dams and locks,’ and by a ‘continu- 
 46 ed canal,’) are relatively considered, incomparably the cheapest.” 
 
 The Engineer engaged by the Commissioners, having died in the 
 progress of the survey, another Engineer was engaged to complete 
 his labour; and from the last, a report was made to the Commission- 
 ers, from which the following is an extract: 
 
 44 It has been deemed expedient to divide into sections the proposed 
 44 canal, for the purpose of facilitating its execution. The first sec- 
 44 tion extends, from the commencement at Cumberland, in Mary- 
 44 land, to the mouth of Capon in Virginia, 54$ miles : the second 
 44 section, from the mouth of Capon, to the mouth of the Great Cono- 
 44 cocheague, or Williamsport, in Maryland, 33$ miles : the third 
 44 section, wholly on the Maryland side of the river, from the mouth 
 44 of Great Conococheague, to Harper’s Ferry, opposite the mouth of 
 44 the Shenandoah river, 38J miles : the fourth section, still on the 
 44 Maryland side, from the head of the Great Falls, to tide water, in 
 44 the District of Columbia, 12 miles : amounting altogether, to 185 
 44 miles of canal navigation, from Cumberland, to tide water. 
 
 44 Recapitulation. —The first section commences at Cumberland, in 
 44 Maryland, and crossing the river three times, terminates at the 
 “ mouth of Capon, on its western bank. The first crossing to the 
 44 Virginia shore, just above Crassy’s landing, sixteen miles from 
 44 Cumberland, is by a dam, of suitable elevation; then descending by 
 44 locks, into the still-water, above the dam, will pass through a guard 
 44 lock into a canal on the opposite shore. 
 
 ‘‘The second, crossing to the Maryland shore, is also by means of 
 a dam placed just below the mouth of South Branch, 19 miles from 
 Cumberland, to raise the water in the Potomac eight feet. In every 
 case where a dam is the means of crossing a river, a guard-lock is 
 indispensable at the entrance of the canal on the opposite shore. 
 Aqueducts, however, as the mode of crossing rivers, with a canal, 
 
80 
 
 are on accou nt of the superior safety and convenience which the 
 iford to navigation, decidedly preferable to dams, although more ex¬ 
 pensive in construction ; yet, whfere we cannot avail ourselves of suf¬ 
 ficient feeders from side streams to keep always a full and certain 
 supply of water in our upper levels, dams are adopted, because, by 
 them, we obtain from the river an abundant supply. This is pre¬ 
 cisely the case in the first crossing ; and, in the second, there is not 
 sufficient elevation for an aqueduct.” 
 
 “ The second section commences with an aqueduct across Capon, 
 and, continuing on the Virginia side, 14 miles, crosses the Potomac 
 on an aqueduct to the Maryland shore, and terminates at the western 
 bank of the Great Conococheague.” 
 
 “The third section commences with an aqueduct across Great Co- 
 “ nofcocheague, and, continuing on the Maryland side, terminates at 
 ^Harper’s Ferry. 
 
 “ The fourth section commences at Harper’s Ferry, and, continu- 
 « ing on the Maryland side, terminates at the head of the Great Falls. 
 
 “ The fifth section commences at the head of the Great Falls, and, 
 “ continuing on the Maryland side, terminates at the head of tide 
 “ water navigation, in the District of Columbia.” 
 
 Subscribed 
 
 ISAAC BRIGGS. 
 
 Georgetown, 12 th Month , ( December) 19, 1822. 
 
 The Commissioners’ Report to the Governor of Maryland, embra¬ 
 cing the above, is dated Georgetown, December 19, 1822, and sub¬ 
 scribed by 
 
 ATHANS. FENWICK, 
 WILLIAM NAYLOR, 
 MOSES T. HUNTER. 
 
 Third. 
 
 Extracts from the President’s Message of February 14, 1825, to the 
 House of Representatives: 
 
 < ‘ From the views which I have taken of these reports, I contem¬ 
 plate results of incalculable advantage to our Union, because I see in 
 them the most satisfactory proof that certain impediments which had 
 a tendency to embarrass the intercourse between some of its most 
 important sections, may be removed without serious difficulty.” 
 
 JAMES MONROE. 
 
 Extract from the Letter of the Secretary of War , which accompanied 
 the Report in its passage , from his office, to tht President: 
 
 War Department, February 12, 1825. 
 
 “The Board have reported favorably as to the practicability of 
 passing the summit level between the waters of the Potomac and the 
 
81 
 
 Ohio, by means of a canal; and that it may be effected at a small 
 expense, compared with the advantages expected to result from its 
 execution, in a national and commercial point of view.” 
 
 J. C. CALHOUN. 
 
 Extract from Iht instructions given the Board of Internal Improvement 
 by the Chief Engineer of the Department of War: 
 
 “ The Board will proceed to make an immediate reconnoissance 
 of the country between the tide waters of the river Potomac and 
 head of steamboat navigation of the Ohio, and between the Ohio and 
 Lake Erie, for the purpose of ascertaining the practicability of a 
 communication between those points, of designating the most suitable 
 route for the same, and of forming plans and estimates in detail of 
 the expense of execution.” 
 
 “ It is very desirable that the report should be received on this im¬ 
 portant line of communication in time to be submitted to Congress 
 at their next session.” 
 
 ALEXANDER MACOMB, 
 
 Maj. Gen . Chief Engineer . 
 
 Extract from the Report made pursuant to these instructions: 
 
 “ CHESAPEAKE AND OHIO CANAL. 
 
 « This canal may be divided in three sections, eastern, middle, and 
 western. 
 
 “ EASTERN SECTION. 
 
 “This section ascends the valley of the Potomac; as the several 
 ridges which that river traverses and breaks through, oblige to fol¬ 
 low its course, without any deviation, the side on which it should as¬ 
 cend along the river, is the only choice left to the Engineer. We will, 
 therefore, compare the respective facilities for receiving the bed of a 
 canal, which exist on each of these sides. 
 
 “ From Georgetown to the Little Falls’ bridge the northern shore 
 of the river is flat, whilst, on the southern shore, the mountain ex- • 
 tends close to the stream and is more abrupt. 
 
 “ From the Little Falls to the Monocacy the northern is very rug¬ 
 ged ; but from the Monocacy to Harper’s Ferry it offers a succession 
 of flats and bluffs. The southern shore on that whole extent is very 
 rugged ; its banks of red slate hang perpendicularly over the stream 
 in several places. 
 
 “From Harper’s Ferry to Shcpherdstown, both shores present 
 undulating flats, and a soil easy to work. The same nature of ground 
 runs from Shepherdstown to Williamsport. 
 
 “From Williamsport to Hancock,the northern shore presents ex¬ 
 tensive flats, whilst the mountain on the southern shore stretches 
 closer to the bed of the river. 
 
 9 
 
82 
 
 “ From Hancock to Town-creek, the northern shore is flat, to the 
 promontory, formed by Sidelong Hill, and from thence presents a 
 succession of flats to Town-creek. The southern shore offers no 
 greater facilities, except on front of Sidelong Hill. 
 
 “From Town-creek to Oldtown, the flats on the northern shore 
 are only interrupted by a precipitous bluff, on an extent of about 
 300 yards. The southern shore presents no advantages over it. 
 
 “From Oldtown to Cumberland, the northern shore is flat,except 
 for one mile along Alum Rock, and the same extends along Brad- 
 dock’s Hill. 
 
 “ This short analysis is sufficient to show, that the northern side of 
 the valley offers the best ground for receiving the bed of a canal. 
 Some portions of the southern bank might be more favorable than 
 the portions of the northern shore which face them; but in order to 
 render this advantage available, it would be necessary to cross the 
 river frequently by aqueducts, which would cost more than the ex¬ 
 pense required to subdue the obstacles of the northern shore. 
 
 “ Another important consideration, which should determine our 
 preference of it, is its exposition to the south, by means of which, the 
 canal w ill be earlier and longer navigable, and less subject to be 
 seized by sudden frosts in spring and autumn. 
 
 “ In descending from Cumberland, the canal will cross Evets 
 creek. From thence to Braddock’s Hill, it will follow the left shore; 
 but if it run farther'on that side, shelves should be cut through Brad- 
 dock’s Hill, Alum Hill, and Oldtown bluff, or it should turn round 
 them on embankments, supported by walls. 
 
 From Town-creek to Sidelong Hill, the narrow strip which runs 
 along the left shore, offers the best ground for the canal, which must 
 cross Town-creek and Fifteen mile creek on aqueducts. 
 
 “The long and perpendicular bluff of Sidelong Hill, compels to 
 cross the Potomac above the mouth of this creek, and follow the right 
 shore till you reach opposite Conoloway creek. 
 
 “ From the Conoloway to the Conococheague, at Williamsport, 
 the canal may follow the left shore, crossing the Conococheague on an 
 aqueduct. 
 
 “From thence to the foot of Elk Mountain, in front of Harper’s 
 • Ferry and the Shenandoah, it continues on the same side crossing 
 Antietam creek. 
 
 “From Elk Mountain to the Monocacy, the left shore offers the 
 best ground, though it presents two formidable obstacles, South and 
 Catoctin Mountains. The canal must be led along these points, on 
 shelves or embankments.” S. BERNARD, Brig. Gen. 
 
 JOS. G. TOTTEN, 
 
 Maj. Eng. Brevet Lt. Col. 
 
 Washington City , Feb. 2, 1825. 
 
 “Washington City, October 23, 1826. 
 
 “ The foregoing facts and investigations, connected with those ex¬ 
 posed in the report A, (Feb. 1825,) lead us to recommend the follow ¬ 
 ing route for the Chesapeake and Ohio Canal 
 
83 
 
 44 From Georgetown, D. C. to Cumberland, it will ascend the val¬ 
 ley of the Potomac, thence the valley of Wills’ creek to the mouth of 
 Bowman’s run. It will then cross the summit ridge by a tunnel, and 
 descend in succession the valleys of Casselman’s river and the You- 
 ghiogany, to terminate at Pittsburg, Penn., at the mouth of the Mo- 
 nongahela.” 
 
 44 Eastern Section. 
 
 44 From Cumberland to Georgetown the valley of the Potomac is 
 rapid, and its sides formed of a succession of bluffs and narrow flats ; 
 the bluffs on one side being generally opposite to the flats on the 
 other. The parts which offer the greatest obstacles to the location of 
 the work, are those where the stream forces its way through the high 
 ridges whose direction is transverse to the bed of the river. At these 
 places the banks are steep, the stream much winding, and its velo¬ 
 city very great, owing to falls and rapids. Whilst the flats present 
 no difficulties, the bluffs and steep parts oblige, absolutely, to have 
 the canal supported by walls whose height would place the work 
 above the reach of freshets, and whose other dimensions should be 
 calculated to resist the impetus of the stream. The freshets are from 
 15 to 30 feet in height, and the general fall of the river bed, S feet 
 nearly per mile. 
 
 “ To avoid the parts which, by their steepness, oppose the great¬ 
 est difficulties to the location of the canal, the crossing of the stream, 
 in order to place the work on each bank alternately, is the first idea 
 which presents itself. But the adoption of such a system would lead 
 into the difficulties and great expenses attending the erection of per¬ 
 manent and solid aqueducts across the Potomac; and, also, would 
 oblige to keep, in many places, the level of the canal at an elevation 
 which would affect materially the other requisites of the work. 
 
 44 After due investigations upon this subject, we remain convinced 
 that it is more expedient, less expensive, and liable to less accidents, 
 to keep, without deviation, on the same side of the valley ; and the 
 Maryland side has received the preference, for the following reasons: 
 The obstacles are generally of less magnitude than on the Virginia 
 side ; the exposure is more favorable, and will cause in the Spring 
 an earlier, and in the Fall a later navigation.” 
 
 44 S. BERNARD, Brig, Gen . 
 
 44 Member of the Board of Internal Improvements. 
 
 44 WM. TELL POUSSIN, 
 
 44 Capt. Top, Engineers , Assistant to the Board. 
 
 ‘ « WM. HOWARD, 
 
 44 Civil Engineer , Assistant to the Board.” 
 
84 
 
 Fourth . 
 
 Extract from a report made by Messrs. Geddes and Roberts to the Se¬ 
 cretary of War, communicated , in part, to the Committee on Roads 
 and Canals of the House of Representatives, on the \Oth of January , 
 1828, and , in whole, to the House of Representatives , by the Secre¬ 
 tary of War, on the 10 th of March, 1828. 
 
 “ The undersigned beg leave to report, that, in pursuance of an 
 appointment to view the route and revise the estimates of the Chesa¬ 
 peake and Ohio Canal, a careful and particular location and survey 
 has been made of the Eastern section thereof, commencing one mile 
 below Cumberland, and terminating at the tidewater, at the city line 
 of Georgetown. Maps and profiles of the same are herewith pre¬ 
 sented. Of the estimated expense, three different calculations have 
 been made.” 
 
 “ First —For a canal and locks of the dimensions of the State ca¬ 
 nals of New York, Pennsylvania, and Ohio ; having, at hand, accu¬ 
 rate calculations of their various structures, and tables of the differ¬ 
 ent depths of excavation and embankment, slope, &c. Those canals 
 are forty feet at the water surface, four feet depth of water, and twen¬ 
 ty-eight feet wide at bottom. The locks are ninety feet in the cham¬ 
 ber, and fifteen feet in width. 
 
 “ Second —For a canal of the dimensions required by the Board of 
 Engineers, viz: forty-eight feet at the water line, with serf berms 
 two feet horizontally on each side, five feet depth of water, and thirty 
 three feet in width at the bottom. Locks one hundred and two feet 
 in the chamber, and fourteen feet in width ; and, 
 
 “ Third —For a canal, as recommended by the Committee on Roads 
 and Canals, < that, wherever practicable by common excavation, the 
 said canal shall have its surface enlarged to sixty feet, with a pro¬ 
 portionate breadth at the bottom,’ which is computed at forty-five 
 feet, and five feet depth of water. The dimensions of the locks the 
 same as recommended by the Board of Engineers, viz: one hundred 
 and two feet in length, and fourteen feet in width. Those portions of 
 the proposed canal which have been widened to forty-eight and sixty 
 feet amount to one hundred and twenty-six miles, and two hundred 
 and ninety-nine yards, and which may be considered as the most fea¬ 
 sible kind of earth for excavation, &c., being mostly on old alluvial 
 bottom, free from roots and stones, and along moderate slopes, from 
 six to twelve degrees of declivity. 
 
 “ These parts of the canal, which, from motives of safety and eco¬ 
 nomy, are not enlarged over forty feet at surface, amount to sixty 
 miles and one thousand and fifty-four yards, and include all the deep 
 embankment, steep side-hill cutting, and embankments in the river— 
 on basements of stone, from fifteen thirty feet wide, and from two 
 to eight feet deep, or to the surface of the w ater, are calculated, where 
 necessary ; and protected on the outside by a strong paving of stone, 
 of the average thickness of two feet from the basement to the top of 
 the embankment, with a slope of one and a half base, to one perpen- 
 
85 
 
 dicular. These two portions make the whole length of the Eastern 
 section, one hundred and eighty-six miles and one thousand three 
 hundred aHd fifty-three yards. Each sub-division of which has been 
 divided into miles and shorter distances, and carefully estimated, to¬ 
 gether with the necessary culverts, aqueducts, bridges, locks, waste 
 weirs, dams, and feeders ; all which are included in the following 
 calculations. The result is given at the end of each sub-division, 
 and the grand result at the conclusion.” 
 
 44 Remarks on first subdivision. 
 
 • 
 
 44 The river embankment and paving are at the Narrows, Brad- 
 dock’s Hill, Alum Hill, and other places not named. 
 
 44 It is proper to observe, that the descriptions of difficulties and 
 facilities, as given by the report of the United States’ Engineers, has 
 been found to apply to each subdivision with usual accuracy.” 
 
 44 Remarks on second subdivision. 
 
 44 On the 31st mile of the 2d subdivision, a dam across the Poto¬ 
 mac, and a feeder to the canal, is calculated to enter below the 12th 
 lock. This dam will form the second spacious basin for the accom¬ 
 modation of the Virginia side, connected with the canal hy the short 
 navigable feeder and the guard lock.” 
 
 “ Remarks on the fourth subdivision. 
 
 44 The expensive parts of this subdivision, and such as would not 
 bear widening, are, side hill excavation near Fort Frederick, the 
 cut through Prater’s neck, and the river embankment between Pra¬ 
 ter’s neck and Williamsport, in tw r o places. In these places, the 
 earth is supposed to be brought from the Virginia side of the river, 
 and the price (one hundred and two thousand, eight hundred and 
 sixty-nine dollars and ninety cents, for one mile) is made to cover 
 that, and, also, the expense of the stone basing for the banks, and 
 making a secure lining for the canal. The stone for paving abound 
 wherever they are wanted.” 
 
 “ Remarks . On the 6th subdivision, below the junction of the 
 Shenandoah with the Potomac, a dam is calculated to raise the water 
 about three feet, or, so high as not to injure, the hydraulic-powder at 
 the public works. This will form the third spacious basin in the 
 Potomac, and, at this point especially, it would be of great public 
 utility to the establishment of the United States at Harper’s Ferry, 
 as well as the trade of the Shenandoah. 
 
 44 It is computed that this feeder from the Potomac , will supphj the 
 canal to the head of the Seneca Falls , and supersede the necessity of 
 resorting to the Monocacy or Seneca creeks, and thereby save the 
 damage done to mill owners, which must he considerable if those 
 streams were diverted from their present channels. 
 
 44 It may be here observed, that those streams have been surveyed 
 for feeders, as may be seen on the maps; but, for the above reasons, 
 are not included in these estimates.” 
 
 44 Remarks. —On the 2nd mile below the mouth of Seneca creek, a 
 44 low darn is calculated across the Potomac, at the head of the Sene- 
 
86 
 
 “ ca falls : this will afford a spacious sheet of still*water, from the 
 “ site of the proposed dam, above the quarry where the Seneca stone is 
 “ obtained, and will form the 4th spacious basin for the accommoda- 
 “ tion of Virginia, and the supply of water thus received into the ca- 
 “ nal will prevent the necessity of taking the Seneca creek for a 
 “ feeder, which is so valuable a mill stream ; and, therefore, is not 
 
 included in this estimate. 
 
 “ From Harper’s Ferry to Seneca Falls, where the next feeder en- 
 “ ters, is over thirty-nine miles ; and should all the water that could 
 tf be made to enter the canal above, prove insufficient, for said dis- 
 << tance, enough could be taken through short feeders, from Catoctin, 
 “ Tuscarora and Little Monocacy creeks, without disturbing mill 
 “ owners. 
 
 JAMES GEDDES, 
 
 Civil Engineer. 
 NATHAN S. ROBERTS, 
 
 Civil Engineer . 
 
 A slight attention to the map of the State of Maryland will shew 
 that the preceding location of the eastern section of the canal is along 
 the south side of the Potomac. 
 
 The proof, that the left bank of the river was always contemplat¬ 
 ed by the States, the United States, and the corporations and indi¬ 
 viduals who subscribed to the stock of the canal on the faith of those 
 surveys and estimates, was further corroborated by reference to the 
 geology of the country through which the Potomac passes, the geo¬ 
 graphical position of Cumberland and Georgetown, as well as Wash¬ 
 ington, on the left bank of the river, the Southern exposure afforded 
 along the left bank, and the cost and hazard of constructing two 
 aqueduct bridges across the main river, if the canal be driven from 
 the left bank to the right bank, or from the Maryland to the Vir¬ 
 ginia shore. 
 
 Under the first of these heads, reference was made to the high and 
 precipitous cliff, and very deep water along the Virginia shore next 
 above Georgetown, and the uneven ground along various other falls 
 and narrow passes of the Potomac. 
 
 Under the last, the relative difficulties and hazard of carrying a 
 canal and rail road across the Potomac, were contrasted, with a view 
 to demonstrate, that, if either work should cross the river, the rail¬ 
 way might, to give place to the canal, since an aqueduct bridge has 
 its level prescribed by that of the water of the canal, and must occu¬ 
 py a space of eight feet above the bottom of the qanal, in addition to 
 the depth of the arches and their necessary cover of earth. 
 
 Under the 3d, it was contended, that those frosts which would sus¬ 
 pend the use of the canal much longer in the year, if it were conduct¬ 
 ed along a North, than a South exposure, would be much less inju¬ 
 rious to a rail road; and, for that reason, the rail road should give 
 place to the canal, on that shore so long appropriated to its use. 
 
87 
 
 C. . 
 
 the BALTIMORE AND OHIO RAIL ROAD COMPANY, 
 
 vs. 
 
 THE CHESAPEAKE AND OHIO CANAL COMPANY, AND OTHERS, 
 
 BILL No. 1. 
 
 To the Honorable Theodorick Bland, Chancellor of Maryland: 
 
 The Bill of complaint of the Baltimore and Ohio Rail Road Com- 
 pany, respectfully sheweth, 
 
 That by an act of the Legislature of Maryland, passed at Decem¬ 
 ber session, eighteen hundred and twenty-six, entitled, An act to 
 incorporate the Baltimore and Ohio Rail Road Company, it was en¬ 
 acted, that as soon as ten thousand shares of the capital stock of 
 said Company should be subscribed, the subscribers thereof should be 
 incorporated into a Company, by the name of the Baltimore and Ohio 
 Rail Road Company, and should be clothed with all the powers neces¬ 
 sary to the construction of a Rail Road, from the city of Baltimore 
 to the Ohio river; that the sum required in order to the incorpora¬ 
 tion and organization of said Company, having been previously ob¬ 
 tained, the said Company was duly organized by the election of a 
 President and Directors to manage the affairs of the same ; that the 
 subscriptions to the capital stock of said Company, having been aug¬ 
 mented, so as to amount in all to four millions of dollars, the said 
 Company .found itself at once prepared to commence the construction 
 of said road ; and, possessed of means deemed at least sufficient for 
 its completion to the town of Cumberland, in Alleghany county, and 
 with a view to the construction of said road, the President and Di¬ 
 rectors of said Comply, caused all the various routes for said road 
 to be examined by skilful engineers, in order to the determination 
 of the general direction, who ultimately recommended the adoption of 
 the southern route of the said road, to wit : from Baltimore to the 
 Potomac river, by the waters of the Patapsco and the Monocacy, 
 striking the Potomac at the point of the rocks on the north eastern 
 side of the gap, at which the Potomac passes through the Catoctin 
 mountain, and thence to Williamsport, and thence with the Potomac, 
 with inconsiderable deviations, to Cumberland ; that the route for 
 said road was finally adopted by the said President and Directors; 
 and the said President was ordered, by a resolution of the said Board 
 of Directors, to proceed at once to the construction of said road upon 
 said route, Your orator further sheweth, that, after the route for 
 said road had been definitively ascertained by said report, and a day 
 for the commencement of the operations of the Company thereon as¬ 
 signed, the said President and Directors deputed engineers, to pass 
 along the route thus adopted, and wherever the character of the 
 ground was such as to leave but little choice as to the location of said 
 road, to make an actual location of the same at once over such ground, 
 
88 
 
 so that the said actual locations might serve as regulating points for 
 its location over the intermediate sections, and secure the passage of 
 said road; and the said President and Directors also deputed agents 
 and attornies to accompany said engineers, who were directed and 
 required, by the said President and Directors, to take all necessary 
 or proper steps, to procure a title to the lands over which said actual 
 locations were made, or to a right of w r ay over them. 
 
 Your orator further sheweth, that under and in conformity to the 
 requisitions of the said President and Directors, the said engineers 
 proceeded at once to the actual location of said road, over such por¬ 
 tions of the route from the Point of Rocks aforesaid, to the town of 
 Cumberland aforesaid : of Which specifications of said locations, 
 which have been adopted and confirmed by the said President and 
 Directors, and which extended from the Point of Rocks inclusive, 
 through Frederick, Washington, and Alleghany counties, to and over 
 the lands of John Mitchell, in Alleghany county, lying immediately 
 above Mitchell’s rocks, and above the lands of John Folck, are here¬ 
 with exhibited, marked A, B, C, D, E, F, G, H, I, K, L, M, 
 N, O, P, Q, R, S, T, U, Y, W, X, Aa, Bb ; that all the said 
 locations were made with a bona fide intention on the part of your 
 orator, of perfecting its incipient title to the lands included in said lo¬ 
 cations, or on the route of said road by purchase, condemnation or 
 otherwise, and of proceeding as speedily as possible to the construc¬ 
 tion of said road over the same; that acting with this intention, and 
 designing to accomplish this object, the said President and Directors 
 therefore deputed agents and attornies to procure a title to the same, 
 or a grant of a right over the same as aforesaid ; and that the afore¬ 
 said agents and attornies of the said Company, in pursuance of the 
 authority aforesaid, and to accomplish the objects aforesaid, have ob¬ 
 tained from George Snouffer, Patrick D. M‘Gill, James Hook, Peter 
 Miller, Philip Grove, Peter Beeler, David M‘Minn and Charles 
 M‘Minn, Margaret and Daniel Souder, Susannah Beeler, David 
 Hahn, John D. Grove, Grafton Duvall, Lloyd Luckett, Lingan Bote- 
 ler, Thomas Conn, Patrick O’Bryone, John Blackford, Adam My¬ 
 ers, George Cronise, Elizabeth Cronise, Mathias Strong, Jr., Re- 
 camah Stevens, Peter Palmer, John Booth, Samuel M. Hitt, Emeline 
 V. Corbaley, Henry Clagett, James B. Wager, Gerard Wager, 
 Catherine Wager, Anthony Snyder, Jacob T. Towson, Frederick 
 Dellinger, George Snider, Watkins James, Henry Dellinger, Mi¬ 
 chael Smith, Joseph Smith, Jacob Barkman, Joseph Charles, Jr., 
 Joseph Charles, Sen. Nicholas Lowe, Henry Wells, Alexander 
 Moore, Sarah Jaques, James H. Bowles, John Johnson, Paul Sum¬ 
 mers, George Harvie, Daniel Rieley, John O’Ferrall, Jacob Martin, 
 James King, William Hughes, Ludwic Rodene, William Golding, 
 Stephen Fouty, Walter M‘Atee, and Nathan Tracy, relinquishments 
 or agreements under hand and seal, binding themselves, their heirs 
 and assigns, to grant to your orator a right of way for the Baltimore 
 and Ohio Rail-Road, either specifically, according to the said actual 
 locations, or generally, so as in either case to bind all their lands 
 lying within the said actual locations. 
 
89 
 
 Your orator further shows, that all its abovementioned acts, in 
 locating said road, and obtaining and securing a right of way for 
 said road, over the lands included in said locations, were done by your 
 orator, in strict pursuance of the powers conferred upon it by the 
 abovementioned Act of Assembly, and with a view to the accom¬ 
 plishment of the objects for which said company was incorporated, in 
 the best possible manner, and not merely with the intent or design 
 on the part of your Orator, to impede or obstruct the Chesapeake and 
 Ohio Canal, or Potomac Companies, hereinafter mentioned, in the 
 exercise of their respective powers ; and that to carry into effect the 
 agreements and relinquishments abovementioned, which are here¬ 
 with exhibited, marked 1 , 2, 3, 4, M, N,- and which your 
 
 orator prays may be taken as part of this bill of complaint, the 
 said agents and attornies of the said-President and Direc¬ 
 
 tors -— were about to procure grants of said lands, or of rights 
 
 of way over them, from said grantors, in conformity to their above 
 exhibited agreements, by deeds duly acknowledged for record, or 
 to institute the necessary proceedings to enforce the specific per¬ 
 formance of such agreements, where such grant were refused, and 
 would have procured such grants, or have instituted such proceedings. 
 
 But now so it is, may it please your Honor, that after all the 
 abovementioned acts had been done by the said Baltimore and Ohio 
 Rail Road Company, after the abovementioned actual location of said 
 road had been made, and the abovementioned contracts or agree¬ 
 ments with your orator, made, or entered into, upon an appli¬ 
 cation to Washington County Court, as a Court of Equity, made in 
 the name and on the behalf of the Chesapeake and Ohio Canal Com¬ 
 pany and Potomac Company, by bill of complaint, praying a writ 
 of injunction against your orator, its attornies, agents, and all per¬ 
 sons whatsoever, acting under its authority, or on its behalf, to pre¬ 
 vent them from obtaining a title by purchase, deed or condemnation, 
 or otherwise, to any of the lands lying within the actual locations 
 aforesaid, or to a l ight of way over them, and otherwise to restrain 
 the lawful acts and proceedings of your orator, an injunction, as 
 prayed for, was accordingly issued ; all of which will more fully 
 appear from a copy of the said bill of complaint, marked M, N, and 
 the said writ of injunction, marked L, C, which arc herewith exhi¬ 
 bited, and which your orator prays may be taken as part of this bill 
 of complaint. 
 
 Your orator is advised and believes, that neither the said Potomac, 
 nor the said Chesapeake and Ohio Canal Companies, have any such 
 unquestionable and absolute right of election or pre-emption for 
 the route or site of said canals, or to all or any of the lands lying with¬ 
 in the aforementioned actual locations of the said Baltimore and Ohio 
 Rail Road, as is set forth in the said bill of complaint; that, as your 
 orator is credibly informed and believes, neither of the said Compa¬ 
 nies had obtained, at the time of issuing the said injunction, any title 
 or right, by location, purchase, deed, condemnation, or otherwise, to 
 the exclusive use and possession of any of said lands ; that the Poto- 
 10 
 
90 
 
 mac Company lias been organized for more than forty years, and 
 during all that period has not exercised any franchise or right of 
 election, as to said lands, which it may have derived under its char¬ 
 ter, so as to vest in it an exclusive title to the same, or to any part of 
 them ; and that at the time when all the abovementioned locations and 
 agreements were made, the said Chesapeake and Ohio Canal Company 
 was not , and never had been, sufficiently organized, so as to be com¬ 
 petent, under its charter, to do such ads, make such contracts, or ac¬ 
 cept such gifts and relinquishments, as were and are necessary to vest 
 in the said Company, any pre-emption, election, or exclusive right to 
 any of the lands lying within the aforesaid actual locations; although, 
 as your orator has reason to believe, from the allegations of said bill 
 of complaint of said Company, and from other information from cre¬ 
 dible persons, and verily does believe, the said Chesapeake and Ohio 
 Canal Company is now sufficiently organized for said purposes, by 
 the election of a President and Directors. 
 
 And your orator further alleges, that it has good reason to believe, 
 and verily does believe, that whilst the said Chesapeake and Ohio 
 Canal, and Potomac Canal Companies, were professing, in their said 
 bill of complaint, an entire reliance upon their pretended priority and 
 right of election, as set forth in said bill, unaccompanied and unfor¬ 
 tified by any location, purchase, condemnation, or other act on their 
 part necessary to secure and vest in them such alleged priority and 
 right of election, it was the principal, if not the sole object, of the said 
 companies, and their confederates, in obtaining said injunction, to ob¬ 
 struct and prevent your orator from enjoying the benefit of the above- 
 mentioned agreements and relinquishments, and from perfecting the 
 same by deed or conveyance, so as to vest in your orator a complete 
 legal title to the lands to which said agreements or relinquishments 
 relate, or to a right of way over them, until the said Chesapeake and 
 Ohio Canal Company was properly organized, and prepared to appoint, 
 and might appoint agents, adopt rules, make, or cause to be made, 
 locations and contracts, and do and assent to all other acts which 
 might be necessary or proper to vest in the said Chesapeake and Ohio 
 Canal Company, a title to the very lands for which, or a right of 
 way over which, the above agreements have been entered into with 
 your orator ; and your orator has also good reason to believe, and 
 verily does believe, that it was the intent and design of the said com¬ 
 panies, and their confederates, in applying for and obtaining said in¬ 
 junction, to set up their pretended priority for the purpose of restrain¬ 
 ing your orator from enjoying the benefit of the above agreements, 
 and from acquiring a title to the lands affected by the same, until 
 the said Chesapeake and Ohio Canal Company was competent and 
 prepared to acquire, and could acquire, a title to the said lands, in the 
 very mode in which your orator was about to obtain, and would have, 
 obtained a title to the same, but for the interposition of the above- 
 mentioned injunction, and might thus be enabled, if their priority and 
 right of election set forth and relied upon in their said bill of complaint, 
 should fail them, to resort to a title acquired by purchase, deed, or 
 
I 
 
 91 
 
 condemnation, and acquired only by fraudulently restraining your 
 orator, from availing itself of the equitable title which it derives un¬ 
 der said agreements ; and, as further evidence of such intention and 
 design, your orator alleges, that it has been credibly informed, and 
 verily believes, that since the said locations and agreements have been 
 made, and the said injunction obtained, and before, attempts have 
 been made by one or more agents of the persons professing to act un¬ 
 der the authority of the said Companies, and on their behalf, or for their 
 benefit, to dissuade and prevent parties to the said agreements from 
 performing their said contracts, and to procure from them deeds f6r, 
 or written agreements to convey, the very lands affected by such 
 agreements, or lying within the actual locations as aforesaid ; and 
 that one or more such deed or agreement, has actually been obtained 
 by a certain Clement Cox, or under his directions, as the agent, or 
 professing to act for said Companies ; from all which, and many 
 other actings and doings of the said Companies, or their attornies, 
 solicitors, and agents, to obstruct and hinder your orator in the en¬ 
 joyment of his rights, your orator has reason to believe, and verily be¬ 
 lieves, that the said Companies, or their agents, combining and con¬ 
 federating for the wrongful purpose aforesaid, will endeavor to pro¬ 
 cure, and are endeavoring to procure, deeds for the said lands, from 
 the very parties to the said agreements, and in violation of the said 
 agreements, or to value and condemn them, or have them valued and 
 condemned, for the use of the Chesapeake and Ohio Canal Company, 
 so as to hold them free, if possible, from any equitable interest in the 
 same which your orator may have acquired under said agreements; and, 
 if not proven ted, will procure, or value and condemn them for their own 
 use, and will endeavor to obtain, and will obtain, possession of the very 
 lands affected by such agreements, and will prevent your orator from 
 taking possession of the same, and will otherwise obstruct and 
 hinder your orator in exercising its rights under said agreements over 
 the same. And your orator further sheweth, that having a due res¬ 
 pect for, and, in all respects, obeying the said injunction issued out of 
 Washington County Court, it will during the continuance of said in¬ 
 junction, be restrained from doing any act whatsoever, to protect the 
 titles which it derives under said agreements, or against said Com¬ 
 panies, and will during that period, be left unprotected against the 
 unjust and unequitable attempts of the said Chesapeake and Ohio 
 Canal and Potomac Companies, to take advantage of their own wrong 
 by procuring titles by purchase, location, or condemnation, so as to 
 give a priority which they could not have obtained but for the said 
 injunction; that the said injunction has been issued solely to protect 
 an alleged priority, or right of election, in the said Chesapeake and 
 Ohio Canal and Potomac Companies, as set forth in their bill, and 
 not requiring any acts on the part of said Companies, such as loca¬ 
 tion, purchase, or condemnation, to vest or originate the same, and 
 as the said Companies, in their said bill of complaint, allege, only 
 in order to a speedy determination as to the existence of such priority 
 or right ; and that the purposes and objects of such injunction can 
 
92 
 
 be accomplished, and full justice done to your orator and to the said 
 Companies in the premises, only by restraining the said Chesapeake 
 and Ohio Canal and Potomac Companies, frohi doing any act or acts 
 whatsoever, to deprive your orator of the benefit of said agreements, 
 until the question of priority of right, as claimed by said Companies, 
 shall have been determined upon their said bill of complaint : so that 
 if said question should be determined against the said Companies, upon 
 their said bill, your orator may be remitted to all the rights which it 
 pqssessed or enjoyed at the time of such injunction obtained, unaffected 
 by any wrongful acts in prejudice of the same, which the said Com¬ 
 panies may have done under color of said injunction, and in perver¬ 
 sion or abuse of its objects ; that then all the alleged rights and pri¬ 
 ority of the said Companies will be saved and reserved to them from 
 their alleged nature, and by the aid of the abovementioned injunction 
 to which your orator is ready to pay all due respect, and all the equi¬ 
 ties of your orator will also be saved and reserved to it, so that, in 
 the event of a decision, in its favor, or upon the bill of complaint of 
 the said companies, it will be remitted to the full enjoyment of them. 
 
 Wherefore, and forasmuch as without restriction imposed upon the 
 said Chesapeake and Ohio Canal and Potbiiac companies and their 
 agents, your orator may be thus unjustly deprived of or injured in 
 the possession of its said equitable rights, and may thus suffer an in¬ 
 jury which cannot be repaired by any decision in its favor upon the 
 bill of complaint of the said Companies ; and forasmuch as a Court 
 of Equity can alone give relief in the premises, and this Honorable 
 Court having full jurisdiction coextensive with the limits of the State, 
 can alone give that speedy and extensive and efficient relief which the 
 nature and urgency of the case requires : To the end therefore, that 
 the said Chesapeake and Ohio Canal Company and the said Potomac 
 Company, being Companies incorporated and organized under acts 
 of the Legislature of Maryland, may, under their respective and cor¬ 
 porate seals, full, true and perfect answer make to all the matters 
 hereinbefore set forth, and that in the meantime the said Chesapeake 
 and Ohio Canal Company and Potomac Company, their agents or 
 attornies, and the agents or attornies of either of them, and all per¬ 
 sons acting or professing to act under their authority or on their be¬ 
 half, or on behalf of either of them, may be strictly prohibited and 
 enjoined from making any contracts or agreements with, or receiving 
 or obtaining any deed or conveyance from any of the abovemen¬ 
 tioned party, grantors in the above exhibited agreements or relin¬ 
 quishments, for any of the lands of the said party, grantors, lying 
 within the limits of the abovementioned actual locations of said Rail 
 Road, or for a right of way over the same, and from anywise ob¬ 
 structing or preventing your orator from taking possession of said 
 lands, under and in conformity to said agreements ; and that the said 
 Chesapeake and Ohio Canal and Potomac Companies, their agents 
 or attornies, or the agents or attornies of either of them, and all per¬ 
 sons professing te act under their authority, or on their behalf, may 
 be strictly prohibited and enjoined, either from issuing or causing to 
 
93 
 
 be issued, or executing or causing to be executed, any warrants for 
 summoning any Jury or Juries, to assess damages for the condemna¬ 
 tion of the lands of the above grantors lying within the said 
 actual locations of said Rail Road, as hereinbefore set forth ; and 
 that all Justices of the Peace and Sheriffs of the Counties of Freder¬ 
 ick, Washington and Alleghany, may be strictly prohibited and en¬ 
 joined, the one from issuing and the other from executing any such 
 warrant or warrants, to value and condemn any of said lands, until 
 the right of priority and election of the said Chesapeake and Ohio 
 Canal and Potomac Companies, as set forth and claimed in the said 
 Bill of Complaint, shall have been fully acted upon and determined, 
 or until the further order of this Honorable Court. 
 
 Your orator therefore prays your Honor, that the said Chesapeake 
 and Ohio Canal Company, and the said Potomac Company, may be 
 made defendants to this bill, and that your Honor will grant unto 
 your orator, the State’s writ of subpoena, directed to the said Defen¬ 
 dants, and requiring them to come in and answer the premises under 
 their respective corporate seals ; and that your Honor will also grant 
 unto your orator the States’ writ of injunction, directed to the said 
 • Chesapeake and Ohio Canal Company and the Potomac Company, 
 their agents and attornies, or the agents or attornies of either of 
 them, and all persons acting under their authority or on their behalf, 
 or under the authority or on the behalf of either of them, and to the 
 several Sheriffs and Justices of the Peace, in and for Frederick, 
 Washington and Alleghany counties, strictly enjoining and prohibit¬ 
 ing the said Companies or either of them ; and the said agents, at¬ 
 tornies or persons, acting or professing to act under the authority, or 
 on the behalf of said Companies, or of either of them, from making 
 any contract or agreement with, or receiving or obtaining any deed 
 or conveyance whatsoever, from George Snouffer, Patrick D. M’Gill 
 and Mary his wife, James Hook, Peter Miller, Philip Grove, Peter 
 Beeler, David Beeler, Samuel Beeler, Eleanor Beeler, Sarah M’- 
 Minn and Charles M’Minn, Margaret Souder and Daniel Souder, 
 Mary Beeler, Susannah Beeler, Peter Beeler, David Halen, John D. 
 Grove, Grafton Duvall, Lloyd Luckett, Lingan Boteler, Thomas 
 Conn, Patrick O’Bryone, John Blackford, Adam Myers, George 
 Cronise, Elizabeth Cronise, Mathias Strong, Recainah Stevens, Pe¬ 
 ter Palmer, John Booth, Samuel M. Hitt, Peter Miller, Emeline V. 
 Corhaley, Henry Clagett, James B. Wager, Gerard Wager, Catha¬ 
 rine Wager, Anthony Snyder, Jacob T. Towson, Frederick Dellin¬ 
 ger, George Snider, Watkins James, Henry Dellinger, Michael 
 Smith, Joseph Smith, Jacob Barkman, Joseph Charles, junior, Jo¬ 
 seph Charles, senior, Nicholas Lowe, Henry Wells, Alexander 
 Moore, Sarah Jacques, James H. Bowles, John Johnson, Paul Sum¬ 
 mers, George Harvie, Daniel ltieley, John O’Ferrall, Jacob Martin, 
 James King, William Hughes, Ludwick Rodene, William Golding, 
 Stephen Fouty, Walter M’Atee and Nathan Tracy, or any of them, 
 for any land or lands, or any interest in any land or lands, by them 
 or any of them owned or possessed, and lying within the limits of the 
 
I 
 
 94 
 
 actual locations of the Baltimore and Ohio Rail Road, as surveyed 
 and marked out by the engineers of the Baltimore and Ohio Rail 
 Road Company, under the direction of the President and Directors of 
 said Company, before the tenth day of June, eighteen hundred and 
 twenty-eight, for the route and site of said Rail Road ; and also 
 from hindering or obstructing your orator, or its agents from taking 
 possession of any of said lands, under their said agreements, or using 
 them in conformity to said agreements; and also strictly enjoining 
 and prohibiting the said Companies, their agents and attornies as a- 
 foresaid, from applying for or causing to be issued or executed, any 
 warrant or warrants for summoning any jury or juries, to assess 
 damages for the condemnation of any of the said lands for the use of 
 said Companies, or either of them, for the route and site of said canal 
 or canals; and also the said Justices of the Peace and Sheriffs, the 
 one from issuing, and the other from executing any such warrant or 
 warrants, to summon any jury or juries, to value and comdemn any 
 of the said lands for the use of the said Chesapeake and Ohio Canal 
 and Potomac Companies, until the claim of the said Chesapeake and 
 Ohio Canal and Potomac Companies, to a priority and right of elec¬ 
 tion as to all the lands lying within the actual locations as aforesaid 
 of the Baltimore and Ohio Rail Road, as set forth and relied upon in 
 their bill of complaint, filed against your orator in Washington 
 County Court, as a Court of Equity, on the tenth day of the instant 
 month, shall have been finally heard and determined upon, or until 
 the further order of this Honorable Court, and that your Honor will 
 grant unto your orator such other and further relief as your Honor 
 may deem proper, or the equity of the case demands. And your 
 orator, &c. 
 
 R. B. TANEY, 
 
 WILLIAM GWYNN, 
 
 J. H. B. LATROBE, 
 
 »6 JOHN Y. L. McMAHON, 
 
 Solicitors for Compls. 
 
 Maryland: Anne Arundel County, to wit: 
 
 Be it remembered, That on this 23d day of June, in the year 
 of our Lord one thousand eight hundred and twenty-eight,personally 
 appeared before me the subscriber, a Justice of the Peace, in and for 
 Anne Arundel county aforesaid, John Y. L. McMahon, and made 
 oath on the Holy Evangelists of Almighty God, that he knows, or is 
 credibly informed, and very believes, that the matters and things set 
 forth in the above hill of complaint, are just and true as stated, to 
 the best of his knowledge and belief. 
 
 Sworn to before me, 
 
 JOS. HOLLAND. 
 
 In Chancery, 2 3d June , 1828. 
 
 Ordered, That writs of subpoena and injunction, issue as prayed by 
 the aforegoing bill of complaint. And it is further ordered, that at 
 
95 
 
 any lime alter the filing of the answers of the said defendants, the 
 Court will hear the motion to dissolve the said injunction : Provided* 
 The said defendants give to the said plaintiff ten days notice thereof. 
 And the Register is directed to endorse a copy of this order on the 
 writ of injunction, that it may be served therewith on the said de¬ 
 fendants. * 
 
 THEODERICK BLAND, Ch’r. 
 
 True copy : Test, 
 
 Ramsay Waters, Reg. Cur. Can. 
 
 BILL No. 2. 
 
 To the Honorable Theoiorick Bland , Chancellor of Maryland. 
 
 This, the bill of complaint of the Baltimore and Ohio Rail-road 
 Company, respectfully showeth : That your orators were duly incor¬ 
 porated and organized under an act of the General Assembly of 
 Maryland, entitled, “ an act to incorporate the Baltimore and Ohio 
 Rail-road Company , 99 passed at December session, 1826; and that 
 being by said act invested with the powers necessary to the construc¬ 
 tion of a rail-road, from the city of Baltimore to the Ohio river, the 
 President and Directors of said Company proceeded, in exercise of 
 the powers conferred upon them by the said act, to cause rcconnois- 
 sances and surveys of the various routes for said road to be made, 
 with a view to its actual location and speedy construction; that in 
 May last, upon the report of the engineers employed to make such 
 surveys, &c. the said President and Directors adopted, as the route 
 for said road from Baltimore to the town of Cumberland, what was 
 designated by said engineers as the Southern route, to wit : from the 
 city of Baltimore by tbe valley of the Patapsco, and thence to the 
 Potomac river, striking the Potomac at the Point of Rocks at the 
 North-eastern side of the gap at which the Potomac passes throng'd 
 the Catoctin mountain, and thence with the valley of the said river, 
 with some deviations, to Williamsport and Cumberland. That the 
 route for said road being definitively ascertained by said report, the 
 subscriptions obtained deemed amply suilicient for its completion to 
 Cumberland, and the day fixed for the commencement of the con¬ 
 struction of said road, the said President and Directors deputed engi¬ 
 neers to pass along tbe said route, and wherever the character of the 
 ground was such as to leave but little choice as to the location of 
 said road, or to present hut one passage, to make, at once, an actual 
 location of said road over the same, designating it by well defined 
 boundaries, so that said location might serve as regulating points for 
 the intermediate sections, and might secure the passage of the road ; 
 and also, agents and attornies to procure for your orators a title to 
 all the lands included in said actual locations, as to a right of way 
 over them for said road. That tbe said engineers proceeded to make 
 
96 
 
 and did make, an actual location of said road over such portions of 
 the route from th6 Point of Rocks aforesaid, to the town of Cumber¬ 
 land, actually surveying and marking out with boundaries the site of 
 said road, particular descriptions of most of which said locations are 
 contained in certain specifications, exhibited with a bill of complaint 
 of your orators, against the Chesapeake and Ohio Canal and the 
 Potomac Companies, filed in this Honorable Court, on the 23d day 
 of June inst., and marked with the letters from A to Bb, inclusive, 
 to which your orators beg leave to refer, as part of this bill. Your 
 orators further show, that they have obtained a title to the lands in¬ 
 cluded in said locations, or to a right of way over them where it was 
 practicable, but where they were unable to agree with the owner or 
 owners, or from other causes, it became necessary, they, by their 
 said attorneys, caused warrants to be issued, to value and condemn 
 such lands for their use, agreeably to the directions of the fifteenth 
 section of their act of incorporation above mentioned. That accord¬ 
 ingly, several warrants were issued to value the lands of John 
 M‘Pherson, John Brien, the representatives of John Jones Hays, 
 Joseph Beeler, Catherine Maybury, Margaret Snyder and John 
 Stevens, which said warrants are herewith exhibited, marked A, B, 
 C, D, E, F, G, H, I, and which your orators pray may be taken as 
 part of this bill of complaint. That actual locations of said road, sur¬ 
 veying and actually defining the site of the same, were made over 
 the following lands, to wit, over certain lands lying and being in 
 Washington county, Maryland, and in part owned by Sophia Otho 
 and Josiah Smith, who are minors, and Michael Barkman and his 
 wife, who are non-residents of the State, which said location is par¬ 
 ticularly described in exhibit R, specification third, of the specifica¬ 
 tions above referred to; also, over certain lands being in said county, 
 and owned by the widow and heirs of the late John Oliver, the said 
 heirs being minors, and the said agents unable to agree with said 
 widow for the purchase of the same, which said location is particu¬ 
 larly described in exhibit R, specification twelfth of said specifica¬ 
 tions ; also, over certain lands being in said county, and owned by 
 Samuel llidout, who then was and is a non-resident as to said county, 
 the said location being particularly described in the specification 
 marked U, Y, and W, above referred to; also, over certain lands 
 being in Alleghany county, Maryland, and owned by a certain Henry 
 Fauver, who then was, and still is, a non-resident, both as to said 
 county and said State, which said location is particularly described 
 in specification X, of the specifications above referred to ; also, over 
 certain lands being in Alleghany county aforesaid, and owned by the 
 widow and heirs of Van Zindla, who were and are non-residents of 
 said county and State, which said location is particularly described 
 in specification A a, of said specifications ; also over certain lands 
 being in Alleghany county aforesaid, and owned by a certain John 
 Mitchell, who did not then, and does not now, reside within the State 
 of Maryland, which said location is particularly described in speci¬ 
 fication Bb, of said specifications. Your orators also show, that the 
 
97 
 
 above-mentioned locations, include all the lands of the aforesaid per¬ 
 sons, lying and being within the limits of the actual locations of said 
 Baltimore and Ohio Rail-road, made as aforesaid, and herewith ex¬ 
 hibited ; that the said warrants were issued, and the said locations 
 made in conformity to the directions of the said act incorporating your 
 orators, and in strict pursuance of the powers conferred by the same ; 
 and that they were issued or made by your orators, with a view to 
 the accomplishment of the objects for which your orators were incor¬ 
 porated, in the best possible manner, in due order, and as necessary 
 to be done to give your orators the full benefit of the aforementioned 
 Southern route, and not with any intent or design merely to impede or 
 obstruct the Chesapeake and Ohio Canal Company and the Potomac 
 Company, hereinafter mentioned, in exercising any powers vested in 
 them by their respective acts of incorporation ; that all the said war¬ 
 rants were issued with a bona fide design to perfect the incipient title 
 under the same, by condemnation according to their tenor; and that all 
 the abovementioned locations were made actually to determine the site 
 of said road, and in order to the speedy exercise by your orators of 
 their power to purchase or condemn the lands lying within said actual 
 locations, and that the titles thus commenced would have been per¬ 
 fected by condemnation or otherwise, as your orators are informed 
 by their agents, and verily believe, so as to exclude any title to the 
 same, which the said Companies or either of them could possibly ac¬ 
 quire by mere location and purchase, or condemnation, but for the 
 injunction hereinafter mentioned. But now so it is, may it please 
 your Honor , that after all the abovementioned acts had been done by 
 or under the direction of the said President and Directors of the Bal¬ 
 timore and Ohio Rail Road Company; after the abovementioned war¬ 
 rants had been issued, and the abovementioned actual locations of 
 said road had been made, upon an application to Washington County 
 Couyt, as a Court of Equity, made in the name and on the behalf of 
 the Chesapeake and Ohio Canal Company and Potomac Company, 
 by bill of Complaint praying a writ of injunction against your ora¬ 
 tors, its attornies, agents, and all persons whatsoever, acting under 
 its authority, or on its behalf, to prevent them from obtaining a title 
 by purchase, deed, condemnation, or otherwise, to any of the lands 
 lying within the actual locations aforesaid, or to a right of way over 
 them, and otherwise to restrain the lawful acts and proceedings of 
 your orators, an injunction as prayed for, was accordingly issued ; 
 all of which, will more fully appear from a copy of the said bill of 
 complaint, marked M M, and of said writ of injunction marked L 
 L, exhibited with a bill of complaint of your orators against the 
 Chesapeake and Ohio Canal Company and Potomac Company, filed 
 in this Honorable Court on the twenty-third day of the present 
 month, to which your orators beg leave to refer as part of this bill of 
 complaint. Your orators are advised and believe, that neither the 
 said Potomac Company, nor the said Chesapeake and Ohio Canal 
 Company, have any such unquestionable and absolute right of pre¬ 
 emption and election fo rthe route or site of said canals, as to all or 
 11 
 
 
98 
 
 any of the lands lying within the aforementioned actual locations of 
 said rail road, as is set forth in said bill of complaint; that as your 
 orators are credibly informed, and verily believe, neither of the said 
 Companies had obtained, at the time of issuing the said injunction, 
 any title or right by location, deed, purchase, condemnation or other¬ 
 wise, to the exclusive use and possession of any of said lands ; that 
 the Potomac Company has been organized for more than forty years," 
 and during all that period has not exercised any franchise or right of 
 election as to said lands, which it may have derived under its char¬ 
 ter, so as to vest in it an exclusive title to the same or to any part of 
 them ; and that at the time when all the abovementioned locations 
 and agreements were made, the said Chesapeake and Ohio Canal 
 Company was not, and never had been sufficiently organized, so as to 
 be competent under its charter, to do such acts, make such contracts, 
 or accept such gifts, grants and relinquishments, as were and are ne¬ 
 cessary to vest in said Company any pre-emption, election, or exclu¬ 
 sive right to any of the lands lying within the aforesaid actual locations, 
 although as your orators have reason to believe, from the allegations 
 of said bill of complaint of said Company, and for other information 
 from credible persons, the said Cheapeake and Ohio Canal Company 
 is now sufficiently organized for such purposes, by the election of a 
 President and Directors. And your orators further allege, that they 
 have good reason to believe, and verily do believe, that whilst the 
 said Chesapeake and Ohio Canal and Potomac Companies were pro¬ 
 fessing in their said bill of complaint an entire reliance upon their 
 pretended priority and right of election, as set forth in their said bill, 
 unfortified by any location, purchase, condemnation or other act on 
 their part, as necssary to vest in them, and secure to them, such 
 alleged priority and right of election, it was the principal, if not the 
 sole design of the said Companies and their confederates, in obtain¬ 
 ing the said injunction, to obstruct and prevent your oratorsffrom 
 enjoying the benefit of the abovementioned purchases, warrants, and 
 locations, and from perfecting their incipient titles emder these, to the 
 lands included in said locations, or to a right of way over them, until 
 the said Chesapeake and Ohio Canal Company was properly organi¬ 
 zed, and was capable of doing or assenting to all acts which might 
 he necessary or proper to vest in the said Chesapeake and Ohio Canal 
 Company, a title to the very lands affected by such warrants or loca¬ 
 tions, or to a right of way over them. And your orators have good 
 reason to believe, and verily do believe, that it was the intent and 
 design of the said Companies and their confederates, in applying for, 
 and obtaining said injunction, to set up their pretended priority for 
 the purpose of restraining your orators from enjoying the benefit of 
 the abovementioned warrants, locations, and purchases, until said 
 Chesapeake and Ohio Canal Company was competent to acquire, 
 and could acquire, a title to said lands, in the very mode in which your 
 orators were about to obtain it, and would have obtained it, but for 
 the abovementioned injunction ; and might thus, if their alleged prio¬ 
 rity should fail them, resort to a title acquired by location and pur- 
 
 

 99 
 
 chase, or condemnation, and acquired only by fraudulently depriving 
 your orators of the priority they had obtained by said purchases, 
 “warrants, and locations, at the time when said injunction was issued ; 
 that if any such priority existed as to the said Companies, any pro¬ 
 ceeding by injunction to restrain your orators was wholly unneces¬ 
 sary to preserve and have such priority, and can only be referred to • 
 the intent and design abovementioned ; and as further evidence, your 
 orators allege, that they have been credibly informed, and verily be¬ 
 lieve, that since the said locations and purchases have been made, 
 and the said injunction obtained, and before attempts have been made 
 by one or more agents of the said Chesapeake and Ohio Canal and 
 Potomac Companies, or persons professing to act under their authori¬ 
 ty, or on their behalf, and for their benefit, to obtain titles to the very 
 lands lying within said actual locations, and to procure from persons 
 owning lands within said locations, a title to the same, or a right of 
 way over them ; and that one or more such deeds has been obtained 
 by a certain Clement Cox, or under his directions, as the agent of 
 said Company ; from all which actings and doings of the said Com¬ 
 panies and their agents, your orators have reason to believe, and do 
 believe, that the said Companies and their agents, combining for the 
 wrongful purposes aforesaid, will endeavour to deprive your orators 
 of all the benefits of said purchases, warrants and locations, and will 
 purchase or have the said lands valued and condemned for the use of 
 the said Chesapeake and Ohio Canal Company, and will endeavour 
 to obtain, and will obtain possession of the said lands, and will pre¬ 
 vent your orators from taking possession of the same, and will other¬ 
 wise hinder or obstruct your orators in the exercise of the rights they 
 have obtained under said warrants and locations. 
 
 Your orators further show, that under their act of incorporation 
 abovementioned, the location of the said Ilail-Road as they are advis¬ 
 ed, is a previous act necessary on the part of your orators, to ascer¬ 
 tain the site of said road, and to determine what land will be wanted 
 for its construction,.and is therefore necessary to vest in your orators 
 the right to purchase or condemn lands, under the fifteenth section of 
 said act, and that the said locations therefore constitute the inception 
 of a title to the lands included within them, for the purpose of con¬ 
 structing said Rail Road; that where the abovementioned locations 
 have been made over lands which have not been purchased, and to 
 condemn which no warrants were actually issued, before said injunc¬ 
 tion was issued, warrants were prepared, or would have been prepared 
 ’and issued, as your orators ar$ informed by their agents, and verily 
 believe in all of said cases, before the twentieth day of the present 
 month, so that before the said Chesapeake and Ohio Canal Company 
 could have been organized, and competent to make locations, purchases, 
 and condemnations, and before the said Potomac Company, if it yet 
 has any such rights, could have exercised similar powers as to said 
 lands ; your orators would have acquired a complete title to the lands 
 included in the aforesaid locations, by condemnation, or an unques¬ 
 tionable incipient title to the same, by the issuing of warrants, to 
 
value them for their use, under their aforesaid act of incorporation, 
 but for the issuing of the injunction aforesaid ; which, as your orators 
 allege, was designed to defeat the priority thus acquired. 
 
 Your orators further show, that having a due respect for, and in alt 
 respects obeying the said injunction issued out of Washington County 
 Court, they will, by the said injunction, be deprived of all the bene¬ 
 fits of said locations and warrants, during its pendency, and will, in 
 some instance, but for the interposition of this Court, be unable to 
 regain the priority which they had thus acquired, and which they en¬ 
 joyed when said injunction was obtained, that the at^ovementioned 
 warrants were all necessarily made returnable at a day which is now 
 past, and occuring after the issuing of said injunction, by the opera¬ 
 tion of which, your orators were prevented from having the Same exe¬ 
 cuted, in conformity to the directions of the fifteenth section of the 
 act incorporating your orators; and that the said warrants cannot 
 now, because of the effect of the injunction, ever be executed in con¬ 
 formity to the directions of the said act; and your orators have thus 
 been deprived of all the priority obtained by the issuing of them, as 
 they have reason to fear, and that during the continuance of said in¬ 
 junction, your orators will be left open to, and unprotected against 
 the unjust and inequitable attempts of the said Companies and their 
 agents, to take advantage of their own wrong by procuring titles, by 
 purchase, location, and condemnation, so as to give them a priority 
 . which they could not have obtained but for said injunction \ that the 
 said injunction has been issued solely upon the allegation of a prior¬ 
 ity, or right of election in the said Chesapeake and Ohio Canal and 
 Potomac Companies, as set forth in their said bill of complaint, and 
 not requiring any act on the part of said Companies, such as location 
 and purchase, or condemnation to vest or originate the same; and, as 
 the said Companies in their said bill of complaint allege, only in order 
 to a speedy determination as to the exercise of such priority of right; 
 and that the purposes and objects of such injunction can be accom¬ 
 plished, and full justice done to your orators and to the said Com¬ 
 panies in the premises, only by restraining the said Chesapeake and 
 Ohio Canal and Potomac Companies from doing any act or acts 
 whatsoever, to deprive your orators of the priority they had acquired 
 by said locations, and the issuing of said warrants, until the claim of 
 right set up by the said Companies, shall have been finally determin¬ 
 ed upon, so that if said claim should not be sustained, your orators 
 may be remitted to all the rights which they possessed, or enjoyed at 
 the time of said injunction obtained, unaffected by any wrongful acts 
 in prejudice of the same, which the said Companies, or either of them 
 may have done under color of said injunction, and in perversion or 
 abuse of its objects.; that if not thus restrained, the benefits of said 
 warrants and locations will be lost to your orators, or your orators 
 driven to remedial proceedings in Chancery to regain the same, whilst 
 by the preventive proceeding by injunction, all the alleged rights and 
 priority of the said Companies, will, from their very nature, and by 
 the aid of the abovemontioned injunction, to which your orators arc 
 
101 
 
 ready to pay all due respect, be saved and reserved to them; and at 
 the same time, all the priorities of your orators acquired by said war¬ 
 rants and locations, will also be preserved and protected against any 
 intermediate wrongful acts on the part of said Companies, so that in 
 the event of a decision in favor of your orators, upon the hill of com¬ 
 plaint, of the said Companies, your orators will he remitted to the 
 full enjoyment of them as they existed when said injunction was ob¬ 
 tained. 
 
 Wherefore, and forasmuch, as without such restriction imposed up¬ 
 on the said Chesapeake and Ohio Canal and Potomac Companies, 
 and their agents, &c. your orators may he unjustly deprived of the 
 priorities as to said lands which they had acquired, or were about 
 to acquire, and would have acquired, but for said injunction, and may 
 thus suffer an injury which cannot be repaid by any decision in their 
 favor upon the hill of complaint of the said Companies, and foras¬ 
 much as a court of equity can alone give relief in the premises, and 
 this Honorable Court having full jurisdiction, co-extensive with the 
 limits of the State, can alone give that speedy, extensive, and effi¬ 
 cient relief which the nature and urgency of the case require. To 
 the end therefore , that the said Chesapeake and Ohio Canal Company 
 and Potomac Company, being Companies incorporated and organiz¬ 
 ed under acts of the Legislature of Maryland, may full, true and 
 perfect answer make to all the matters and things set forth in the 
 above bill of complaint; and that the said Chesapeake and Ohio Ca¬ 
 nal Company, the said Potomac Company, their agents or attornies, 
 or the agents and attornies of either of them, and all persons acting, 
 or professing to act under their authority, or on their behalf, or under 
 •the authority, or on the behalf of either of them, may be strictly pro¬ 
 hibited and enjoined from making any contract or agreement with, or 
 receiving any deed or conveyance from any of the above named 
 owners of said lands, for said lands, or any interest whatever of the 
 said persons in the same; and from causing to be issued or executed, 
 any warrant or warrants, to summon any jury or juries to value the 
 same for the use of the said Companies, or of either of them ; and 
 from preventing your orators from taking possession of the same, and 
 also that the several Sheriffs and Justices of the Peace, in and for 
 Frederick, Washington, and Alleghany counties, may be strictly pro¬ 
 hibited and enjoined, the latter from issuing, and the former from exe¬ 
 cuting any such warrant or warrants, for any of the said lands ; your 
 orators pray your Honor, that the said Chesapeake an<] Ohio Canal 
 Company, and the said Potomac Company, may be made defendants 
 to this bill, and that your Honor will grant unto your orators the 
 State’s writ of subpoena directed to the said defendants, and requiring 
 them to come in and answer the premises under their respective cor¬ 
 porate seals; and that your Honor will also grant unto your orators 
 the Stale’s writ of injunction, directed to the said Chesapeake and 
 Ohio Canal Company, the said Potomac Company, their agents and 
 attornies, and the agents and attornies of each of them, and to all 
 persons acting, or professing to act under the authority or on the be- 
 
102 
 
 half of said Companies, or of either of them, strictly enjoining and 
 prohibiting the said Companies, the said agents, attornies, and per¬ 
 sons acting, or professing to act under the authority or on the behalf 
 of them, or either of them, from making any contract or agreement 
 with, or receiving any deed or conveyance from John MOPherson, 
 John Brien, the representatives of John Jones Hays, Joseph Beeler, 
 Catharine Maybury, Margaret Snyder, John Stevens, Sophia Smith, 
 Otho Smith, Josiah Smith, Michael Barkman and his wife, the widow 
 or children and heirs at law of the late John Oliver, of Hancock, 
 Samuel Ridout, Henry Fawver, the widow or heirs at law of Van 
 Zandt, and John Mitchell, for any lands or any interest in lands 
 owned or possessed by them, and lying within the limits of the actual 
 location of the Baltimore and Ohio Rail-Road, as marked out and 
 surveyed for the route and site of said road, by the engineers of said 
 Baltimore and Ohio Rail-Road Company, under the direction of the 
 President and Directors thereof, before the 10th day of June, 1828, 
 and herewith exhibited ; and also from causing to be issued or exe¬ 
 cuted, any warrant or warrants, to summon any jury or juries, to 
 value the same for the use of said Companies, or of either of them, 
 and from obstructing or preventing your orators from taking posses¬ 
 sion of the same; and also the said Justices and Sheriffs, the former 
 from issuing, and the latter from executing any warrant or warrants 
 as aforesaid, until the claim of the said Chesapeake and Ohio Canal 
 and Potomac Companies, to a priority and right of election to all 
 said lands, as set forth in the bill of complaint, filed against your 
 orators, in Washington County Court as a court of equity, on the 
 tenth day of the present month, shall have been finally heard and de¬ 
 termined, or until the further order of this Honorable Court; and. 
 that your Honor will grant unto your orators such other and further 
 relief, as the equity of their case may require. 
 
 R. B. TANEY, 
 
 WILLIAM GWYNN. 
 
 J. H. B. LATROBE, 
 
 JOHN V. L. McMAHON, 
 
 Solicitors for Compt . 
 
 Maryland: Jlnne Arundel County , to wit: 
 
 - # 
 
 Be it remembered, That on this 24th day of June, in the year 
 of our Lord, one thousand eight hundred and twenty-eight, personally 
 appeared before me, the subscriber, a Justice of the Peace in and for 
 rsaid county, John Y. L. McMahon, and made oath on theHoly Evan¬ 
 gelists of Almighty God, that he knows, or is credibly informed, and 
 verily believes, that the matters and things set forth in the above bill 
 of complaint, are just and true as stated, to the best of his knowledge. 
 
 Sworn to before me, 
 
 JOS. HOLLAND. 
 
108 
 
 In Chancery, 24th June, 1828. 
 
 Ordered , That writs of subpoena and injunction, issue as prayed 
 by the aforegoing-bill of complaint. And it is further ordered, that 
 at any time after the said defendants have filed their answers, the 
 Court will hear a motion to dissolve the said injunction : Provided , 
 the said defendants give to the said plaintiffs ten days’ notice thereof. 
 And the Register is directed to endorse a copy of this order on the 
 said writ of injunction, that it may be served therewith on the said 
 defendants. 
 
 THEODORICK BLAND, Chancellor . 
 
 True copy : Test, 
 
 Ramsay Waters, Reg. Cur. Can. 
 
 BILL No. 3. 
 
 To the Honorable Theodorick Bland, Chancellor of Maryland. 
 
 This the Bill of Complaint of the Baltimore and Ohio Rail Road 
 Company, respectfully sheweth : That your orators were duly incor¬ 
 porated and organized under an Act of the General Assembly of Ma¬ 
 ryland, entitled an Act to incorporate the Baltimore and Ohio Rail 
 Road Company, passed at December session, eighteen hundred and 
 twenty-six, and clothed with all the powers necessary to the construc¬ 
 tion of a Rail Road from the city of Baltimore, to the Ohio River ; 
 and that in exercise of the powers conferred by said act, the President 
 and Directors of said Company, caused reconnoissances and surveys 
 of the various routes for said road, to be made by the engineers of 
 said Company, who by their report in May last, recommended the 
 adoption of the Southern route, to wit, from Baltimore by the Pa- 
 tapsco valley to the Potomac River, striking the said river at the 
 Point of Rocks, and thence, with the valley of the Potomac with in¬ 
 considerable deviations, to Williamsport and Cumberland ; that the 
 said route being thus adopted, and the day for the commencement of 
 the work being assigned, the said President and Directors deputed 
 engineers to go along said route, who were by them instructed, wher¬ 
 ever the character of the ground was such as to leave but little choice 
 as to the location of said road, or to present but one passage for it, 
 to make at once an actual location of said road over the same, desig¬ 
 nating it by well defined boundaries; and the said President and Di¬ 
 rectors also deputed agents to procure a title to the lands included in 
 said actual locations, or to a right of way over them, that in pursu¬ 
 ance of this authority, the said engineers made actual locations over 
 such portions of the said route, from the Point of Rocks to the town 
 of Cumberland ; that a title to the lands, included in said actual lo¬ 
 cations, or to a right of way over them for said road, was obtained in 
 many instances; that warrants to summon juries to value the same, 
 for the use of your orators, were issued in others; and that the follow- 
 
104 
 
 ing actual locations of said road, were made over certain other lands, 
 witli a view to their purchase or condemnation, for the use of your 
 orators, to wit: over certain lands lying and being in Alleghany 
 county, and owned by a certain John Mitchell, who then was, and 
 still is not a resident of the State of Maryland, which said locations, 
 are particularly described, in the specifications herewith exhibited, 
 marked A, B, C, D,-—also, over certain lands, being in said county, 
 and owned by the children and heirs at law, of the late Jacob Fouty, 
 several of w hom are minors, and the residue of whom, the agents of 
 your orators, were unable to agree with, for the purchase of said 
 lands, which said locations are particularly described, in the specifi¬ 
 cations herewith exhibited, marked E and F ; also over certain lands 
 lying and being in said county, and owned by the widow and heirs at 
 law of the late John O’Neill, who then did not and still do not re¬ 
 side in Alleghany county; which said location, is particularly descri¬ 
 bed, in the specification herewith exhibited, marked C, also over cer¬ 
 tain lands, being in the county aforesaid, and owned by Simon Taylor, 
 Michael C. Sprigg and Luther Martin Cresap, and Mary Cresap, 
 of whom, Luther Martin Cresap, owner of part of the lands included 
 in said locations, is a minor, and Mary Cresap has executed a deed 
 to your orators, for her interest in the same, which said location is 
 particularly described in the specifications herewith exhibited, mark¬ 
 ed H; also over certain lands, being in said county, owned by the 
 Cumberland Bank, of Alleghany, the title to the same, being vested 
 in commissioners, a majority of whom, (who alone are competent to 
 grant a title to the same) reside out of said county, which said loca¬ 
 tion is particularly described in specification J, herewith exhibited ; 
 all of which said specifications your orators pray, may be taken as 
 part of this bill: your orators further shew, that all the said locations 
 were made in pursuance of the powers conferred upon them by their 
 Charter, with a view to the accomplishment of the object of their 
 incorporation, in the best possible design, and to the speedy com¬ 
 mencement and construction of said road upon the same, and not with 
 the mere design of impeding or embarrassing the operation of any 
 other^Company, and that all the said locations have been adopted and 
 confirmed by the said President and Directors ; and that the said ac¬ 
 tual locations, together with the location over the lands of John 
 Mitchell, exhibited with the bill of complaint of your orators against 
 the Chesapeake and Ohio Canal and Potomac Companies, filed in this 
 honorable Court, on the twenty third day of June instant, included 
 all the lands owned by any of the said parties, and lying and being 
 within the actual locations of said Rail Road, and from the Point of 
 Rocks aforesaid, to the town of Cumberland. 
 
 But now, so it is, may it please your Honor, that after the above pro¬ 
 ceedings had taken place, and the above specified actual locations were 
 made, upon an application to Washington County Court, as a Court of 
 Equity, praying an injunction to restrain your orators from obtain¬ 
 ing a title to any of the lands included in said actual locations, by 
 purchase or condemnation, by or on behalf of the Chesapeake and 
 
105 
 
 Ohio Canal and Potomac Companies, the said injunction as prayed 
 for, was accordingly issued; as will more fully appear, from a copy 
 of the said bill of complaint of the said companies, and of the injunc¬ 
 tion issued thereon, which are exhibited by your orators in a bill of 
 complaint by your orators, against the said Companies, filed in this 
 Honorable Court, on the 23d day of June instant, to which your ora¬ 
 tors beg leave to refer, as part of this bill of Complaint. 
 
 Your orators further shew, as they are advised, and believe, neither 
 of the said Companies have, or are entitled to, any such priority or 
 right of election as to all the lands included iri said actual locations, 
 as is set forth and relied upon in their said bill of complaint; that the 
 Potomac Company has been incorporated for more than forty years, 
 and that during all that period, the said Company has not exercised 
 any franchise, which it may have derived under its charter, as to any 
 of said lands, as your orators are informed, and verily believe, that 
 when the said locations were made, the said Chesapeake and Ohio 
 Canal Company was not sufficiently organized, so as to be competent 
 under its charter, to do any acts whieh were and are necessary, to vest 
 in it said priority and right of election, although the said Company 
 is now sufficiently organized for said purpose, by the election of a 
 President and Directors; that your orators have reason to believe, 
 and verily believe, the principal if not the sole design of the said Com¬ 
 panies, was to deprive your orators of all the right which they had 
 acquired by purchase, and of the priorities obtained by location or 
 warrants, to value and condemn, and to restrain your orators in the 
 exercise of them, until the said Cheapeake and Ohio Canal Company 
 was sufficiently organized, to be competent to acquire a title to the 
 lands included in said locations, by location and purchase, or condem¬ 
 nation, and might thus be enabled, by depriving your orators of said 
 priority by the said injunction, or suspending the enjoyment of it, to 
 acquire in the mean time titles to the said lands, based upon purcha¬ 
 ses or condemnation by the said Company, if their claim of priority 
 as to said lands, set fortli in their said bill of complaint, should ulti¬ 
 mately be determined against them; that the said proceeding by in¬ 
 junction was not necessary to protect any such claim of priority, as 
 that set forth by the said Companies in their said bill of complaint; 
 and that the intention and design, above imputed to the said Compa¬ 
 nies and their agents, is still further evidenced by the fact, that both 
 before and since the said injunction has been obtained, one or more 
 agents of the said Companies, or persons professing to act on their 
 behalf, have been actively engaged, as your orators are informed, and 
 verily believe, in acquiring titles by purchase, to the very lands lying 
 within the actual locations aforesaid ; and that one or more deeds and 
 agreements for the purchase of lands lying within said locations, 
 have actually been obtained from the owner or owners thereof; and 
 your orators have reason to believe, and verily do believe, that they, the 
 said Companies and their agents, will endeavour in every possible 
 mode, to deprive your orators of the benefit of the abovementioned lo¬ 
 cations, and to procure titles to the lands lying within .the same, 
 12 
 
406 
 
 wherever it is practicable, in utter disregard of the rights of your 
 orators; and if not prevented will acquire titles by purchase or con¬ 
 demnation, to all of them, and will obtain possession of said lands, 
 under such purchases or condemnations, and will keep your orators 
 out of possession, so that in the event of a decision in favor of your 
 orators, and against the claim of priority set up by the said Compa¬ 
 nies, your orators cannot without much expense and delay, and call¬ 
 ing in the aid of a Court of Chancery, be restored to their priorities as 
 they existed, when said injunction against them was obtained ; your 
 orators further shew, that under their said act of incorporation, the 
 location of their road, as they are advised, constitutes the incipiency 
 of a legal title to the lands lying within the same, to be perfected 
 within a reasonable time, the said location or determination of the 
 site of said road, being an election on the part of your orators, in the t 
 
 exercise of a general franchise as to the particular application of it, 
 and being also, the first step to be taken by your orators, to acquire a 
 title to the lands for the site of said road ; and your orators also shew, 
 that not only were the said locations made as an act of election on 
 the part of your orators, and with the intent and design of determin¬ 
 ing the site of said road, so that your orators might acquire a title to 
 the lands wanted for the same as soon thereafter as possible; but that 
 as your orators are informed by their agents, and verily believe, a 
 perfect legal title would have been acquired to all the lands lying 
 within the abovementioned locations, by deed or condemnation, or 
 warrants to summon juries to value the same, for the use of your ora¬ 
 tors, would have been issued, so as to constitute an unquestionable 
 • inception of title, before the twentieth day of the present month, and 
 before the said Chesapeake and Ohio Canal Company could have 
 been organized and competent to acquire a title to the same in any 
 mode; and also before the said Potomac Company, if it yet has any 
 rights, could have exercised them, so as to give them even an incep¬ 
 tion of title, had not the injunction heretofore mentioned, been obtain¬ 
 ed, by the aid of which your orators have been restrained from ac¬ 
 complishing the objects for which said locations were made, and per¬ 
 fecting the title thus begun, and the said Chesapeake and Ohio Canal f 
 
 Company is enabled, in consequence of its subsequent organization, 
 to acquire a title, or to endeavour to acquire it, as to the said lands, 
 in the very mode in which your orators were acquiring it. 
 
 Your Orators further shew, that as the bill of complaint of the said 
 companies against your orators alleges, that the injunction sued out 
 by the said Companies was applied for and obtained by them solely 
 for the purpose of protecting an alleged priority and right of election 
 residing in said Companies, as to all the said lands, which exists 
 without any act on the part of said Companies, to secure or vest the 
 title to the same in them, and of procuring a speedy decision upon their 
 alleged right, that the said priority as claimed by them, existing, 
 if it exists at all, without location, purchase or condemnation, on their 
 part to vest it, such acts will not be necessary therefore to protect or 
 sustain their alleged right; that by the injunction ahovementioned, 
 
107 
 
 your orators will be left unprotected against the consequences of such 
 acts on the part of said Companies; and that having due respect 
 for and in all respects obeying the aforesaid injunction issued out of 
 Washington County Court, they can be protected against an unjust 
 and unconscientious use or abuse of the same only hy confining 
 said Companies to the alleged title as set forth in their said bill of 
 complaint, and hy restraining them from acquiring in the mean time 
 a title to the lands lying within your orators’ aforesaid locations, by 
 purchase or condemnation, so that if the said alleged priority of said 
 Companies be not sustained, your orators may be remitted at once to 
 all the rights and priorities they enjoyed when said injunction was 
 obtained. 
 
 Wherefore,*and forasmuch as your orators are remediless without 
 the aid of a court of equity, and as this court possessing jurisdiction 
 coextensive with the limits of the State, is alone competent to give 
 that extensive speedy, and efficient relief, which the nature and 
 urgency of the case require. 
 
 To the end therefore, that the said Chesapeake and Ohio Canal 
 Company and Potomac Company, may be required to come in and 
 answer the premises ; and that the said Companies, their agents and 
 attornies, or the agents and attornies of either of them, and all per¬ 
 sons professing to act under their authority, or on their behalf, or on 
 the behalf of either of them, may be strictly prohibited and enjoined 
 from making any contract £>r agreement w ith, or receiving any deed 
 or conveyance from any of the abovementioned owners of the lands 
 lying within the above exhibited locations for said lands, or the pur¬ 
 chase of any interest whatever in the same or in any part of them; 
 and also from causing to be issued or executed, or applying for any 
 warrant or warrants, to summon any jury or juries to value the same 
 for the use of either of said Companies, and also from preventing 
 your orators from taking possession of the same, and also strictly 
 enjoining and prohibiting the several Sheriffs and Justices of the 
 Peace, in and for the counties of Frederick, Washington and Alleghany, 
 the latter from issuing and the former from executing any such war¬ 
 rant or warrants ; your orators pray your Honor, that the said 
 Chesapeake and Ohio Canal Company and said Potomac Company, 
 may he made defendants to this bill, and that your Honor will grant 
 unto your orators the State’s writ of subpoena, directed to the said 
 defendants, and requiring them, the said defendants, to come in and 
 answer the premises, and that your Honor will also grant unto your 
 orators the State’s writ of injunction, directed to the Chesapeake 
 and Ohio‘Canal Company, the Potomac Company, their agents and 
 attornies, the agents and attornies of either of them, and all persons 
 acting or professing to act, under the authority, or on the behalf of 
 the said Companies, or of either of them ; and the several Sheriffs and 
 Justices of the Peace of the counties of Frederick, Washington, and 
 Alleghany, strictly enjoining and prohibiting the said Companies, 
 and their said agents, attornies, or other persons acting or professing 
 to act on behalf of said Companies, or cither of them, from making 
 
 e> 
 
108 
 
 any contract or agreement with, or receiving or obtaining any deed 
 or conveyance from John Mitchell, the heirs at law of the late Jacob 
 Fouty of Alleghany county, or any of them, the widow and heirs at 
 law of the late John O’Neill, or any of them, Simon Taylor, Michael 
 C. Sprigg, Luther Martin Cresap, and the Cumberland Bank of 
 Alleghany, or any of them, for the lands or any interest in any lands 
 by them owned or possessed, and lying within the limits of the actual 
 location of the Baltimore and Ohio Rail Road, as surveyed and 
 marked out by the engineers of the Baltimore and Ohio Rail Road 
 Company, under the direction of the President and Directors thereof, 
 for the route and site of said road, before the 10th day of June, 
 1828; and also from applying for or causing to be issued or exe¬ 
 cuted, any warrant or warrants, to summon any jury or juries to value 
 the same for the use of said Companies, or either of them ; and also 
 enjoining and prohibiting the said Justices and Sheriffs, the former 
 from issuing and the latter from executing, any warrant or warrants, 
 to summon any jury or juries to value any of said lands for the use of 
 said Companies, or either of them, until the claim of priority as set 
 forth by the said Chesapeake and Ohio Canal and Potomac Compa¬ 
 nies, in their bill of complaint against your orators, filed in Wash¬ 
 ington County Court as aforesaid, on the 10th day of June, 1828, 
 shall have been finally heard and determined, or until the further 
 order of this Court. And your orators also pray your Honor to 
 grant them such other and further relief as the equity of their case 
 may require. And your orators, &c. 
 
 R. B. TANEY, 
 
 7 WILLIAM GWYNN, 
 
 J. H. B. LATROBE, 
 JOHNY. L. McMAIION, 
 
 Solicitors for Compf . 
 
 Maryland—Jinne Arundel County , to wit : 
 
 Be it remembered, That on this 25 th of June, 1828 , personally 
 appeared before me the subscriber, a Justice of the Peace in and for 
 the county aforesaid, John Y. L. McMahon, who being duly sworn 
 on the Holy Evangelists of Almighty God, deposeth andsaith, that he 
 knows or is credibly informed, and verily believes, that the matters 
 and things stated in the above Bill of Complaint, are just and true 
 as stated, to the best of his knowledge and belief. 
 
 Sworn to before me, JOS. HOLLAND. 
 
 In Chancery, 25th June, 1828. 
 
 Ordered , That writs of Subpoena and Injunction issue, as prayed by 
 the aforegoing Bill of Complaint. And it is further ordered, that 
 at any time after the said defendants have filed their answers, the 
 Court will hear a motion to dissolve the said injunction : Provided , 
 the said Defendants give to the said Plaintiff ten days notice thereof* 
 
109 
 
 
 
 And the Register is directed to endorse a copy of this order on the 
 said writ of injunction, that it may be served therewith on the said 
 Defendants. THEODORICK BLAND, Chancellor . 
 
 True Copy, Test : 
 
 Ramsay Waters, Keg. Cur. Can . 
 
 ANSWER 
 
 OF 
 
 THE CHESAPEAKE AND OHIO CANAL COMPANY 
 
 TO THE AFOREGOING THREE BILLS. 
 
 The answer of the Chesapeake and Ohio Canal Company, to the 
 three several bills of injunction, filed respectively on the 23d, 24th, 
 and 25th days of June, 1828, in the Court of Chancery of the State 
 of Maryland, by the Baltimore and Ohio Rail Road Company, against 
 these’respondents and the late Potomac Company: which several bills 
 these respondents pray leave to answer as consolidated in one suit. 
 
 (1.) These respondents, now and at all times hereafter saving and 
 reserving to themselves all, and all manner of benefit and advantage 
 of exception, to the manifold errors, inconsistencies, imperfections 
 and untruths in the said bills, and in each and every of them contain¬ 
 ed, for answer thereto, or to so much thereof as they are advised it is 
 material or necessary for them to answer, say, that in order more 
 clearly to illustrate the antiquity of their right and title, and of the 
 public recognitions of their right and title, in preference to all other 
 projects of internal improvement^ and to the claims and interests of 
 all other corporations and individuals particularly of the complain¬ 
 ants, to appropriate to the construction of the Chesapeake and Ohio 
 Canal, and of its incidental works andappendages, the most eligible, 
 proper and convenient site and route for the Canal through the vale 
 of the Potomac, from tide water to its highest sources, and especi¬ 
 ally that identical site and route, along the vale and narrow passes 
 of that river, from the Point of Rocks where the river passes through 
 the Catoctin mountain, in Frederick county, Maryland, to Cumber¬ 
 land, in Alleghany county, which the complainants have attempted, 
 or now pretend in their said bills, a right to appropriate and occupy 
 for the site and route of their intended Rail-Road, they deem it expedi¬ 
 ent and proper to submit to the Court a historical deduction of their 
 title, from the inception of the first scheme for improving the navi¬ 
 gation of that river by means of a Canal or otherwise, to its con¬ 
 summation in the charter, by which these respondents are incorpora¬ 
 ted ; shewing the notoriety of the public, and early dedication of the 
 ground in question, to the ends and purposes of a Canal, supplied by 
 the waters of the Potomac and its tributaries; the authentic and 
 
no 
 
 
 binding acts of public authority, and the implied, as well as direct 
 pledges of the public faith, by which such dedication of the ground in 
 question has been sanctioned and guarantied; and the conclusive and 
 plenary notice of the same with which the complainants have advanced 
 their adverse pretensions, and in so doing, have not only unconscion¬ 
 ably infringed the chartered rights of these respondents, but have at¬ 
 tempted to overreach, contravene, and defeat the high objects and 
 intents of public policy, as authentically declared and promulgated 
 by the most solemn conventions of States, communities and individ¬ 
 uals, and irrevocably established by numerous legislative enactments. 
 
 (2.) That the improved navigation of the Potomac, by means of 
 a canal or otherwise, from tide water to the sources of that river, or 
 at least as high as Cumberland, was early considered, before the incor¬ 
 poration of the late Potomac Company, and both before and after the Re¬ 
 volution, an object of public and national importance, and as such en¬ 
 gaged the active attention of the most eminent statesmen and patriots, 
 in Virginia and Maryland ; that immediately after the peace of 1783, 
 it was the first and leading object of public improvement to which 
 those States, and their principal citizens directed their attention; 
 that the far-reaching views of the eminent citizens conjointly employ¬ 
 ed by those States in devising and perfecting the plan of that great im¬ 
 provement, and among the most active and zealous of whom were 
 found many of the most celebrated patriots and warriors of the revo¬ 
 lution, contemplated it, even at that early period, as the great chan¬ 
 nel of commerce and intercourse that was to connect the original 
 States with the vast and fertile regions beyond the Alleghanies; and 
 that the charter of the late Potomac Company was the practical and 
 direct result of those enlarged views and objects, is matter of histo¬ 
 ry, and is more particularly illustrated by the papers and plans of Gen¬ 
 eral George Washington ; by the delegation from the states of Vir¬ 
 ginia and Maryland, of that eminent citizen, and other most distin¬ 
 guished public men of both States, as commissioners to consider and 
 report a plan of the work ; by the public proceedings and report of 
 those commissioners at Annapolis, in the year 1784; and by the con¬ 
 current laws of Virginia and Maryland, establishing the late Poto¬ 
 mac Company, followed up by various acts of the like concurrent 
 legislation, from time to time, enlarging, modifying, or confirming 
 the original charter of that Company.—For authentic copies of some 
 of the preliminary documents and proceedings above referred to, and 
 of all the laws relating to the said Potomac Company, these respon¬ 
 dents pray leave to refer to the printed collections of the same, an¬ 
 nexed to this answer, among the other public and authentic documents 
 hereto annexed, and enumerated in a schedule hereto annexed ; all of 
 which, they aver to be public and authentic documents, and pray that 
 the same be received and referred to as part and parcel of this their 
 answer. 
 
 (3.) It was found, after an experience of between thirty and forty 
 years, that the plan adopted by the late Potomac Company for ren¬ 
 dering the river navigable, was essentially defective and wholly 
 
ill 
 
 inadequate to the great objects for which that Company had been 
 instituted; that all their large capital, and the long and arduous 
 labors of so many years had been expended, without attaining the 
 great end of an uninterrupted and safe navigation from the tidewater 
 to the source of that river; a failure not originating in any defect 
 of zeal or perseverance, or general intelligence in the conduct of 
 that Company, but in the inadequacy of their pecuniary means at 
 the time, in the imperfect state of the science of canalling, and in 
 the general misconceptions of the facilities afforded by the river, 
 itself, for navigation, and of the comparative advantages of a con¬ 
 tinuous canal through the vale of the river, supplied by its own and 
 its tributary waters, and of what is called sluice navigation; mis¬ 
 conceptions common to them and to the whole American community, 
 till the progressive lights of experience and science had subsequently 
 demonstrated the superior advantages of the continuous Canal. 
 When this unfortunate result had become evident, the Potomac Com¬ 
 pany, as well as the community at large, began to consider, with an 
 earnestness and solicitude, due to the great and extensive interests 
 dependent on the scheme, the means of repairing the original errors 
 in its theory and details, and of reverting to the proper, and now r 
 demonstrated plan of a continuous Canal all along through the vale 
 of the river, using the waters of the river and its tributaries, as 
 feeders to the canal; a plan entirely within the scope of their 
 chartered powers, and of the original, notorious and declared ends 
 and objects of their institution ; and with this, the Company con¬ 
 nected the ulterior plan, to which their chartered limits did not 
 then specifically extend, and the practicability of which had but 
 recently been thought deserving of further inquiry, (after the report 
 of the Secretary of the Treasury, in the year 1808, assuming it to be 
 impracticable for a canal to pass the summit of the Alleghany, for 
 want of an adequate supply of water on the summit level) of effecting 
 a connected canal navigation between the head waters of the Potomac 
 and Ohio rivers. With these views the late Potomac Company, in the 
 year 1819, applied to the Board of Public Works of Virginia, to insti¬ 
 tute, through their principal engineer, the proper examinations and sur¬ 
 veys for determining the best mode of improving the navigation of 
 the Potomac, and facilitating a communication, by way of that river, 
 with the western waters. In consequence of which application the 
 Legislature of Virginia passed their resolution of the 8th January, 
 1820, requesting the said Board of Public Works to inquire into 
 the expediency of directing their principal engineer to examine the 
 waters of the Potomac, and to explore the country between the 
 Potomac and Ohio, Ac. with a view to ascertain and report the 
 practicability of effecting a communication by canals, between those 
 rivers; an authentic copy of which resolution is hereto annexed 
 among the said scheduled documents. And the said Board of Public 
 Works did accordingly cause the proper examinations and surveys 
 to be made by their principal engineer, the late Thomas Moore ; 
 who, in the year 1820, made his official report of the same, which. 
 
112 
 
 with the said application from the Potomac Company, was officially 
 printed and published in the annual reports of the said Board, and 
 is hereto annexed among the said scheduled documents. 
 
 (4.) The examinations and surveys of the ground itself, by this 
 practical and gifted engineer, gave results very different from those 
 of the report of the Secretary of the Treasury, above referred to, 
 and which had proceeded upon the apprehension of conjectural 
 difficulties, not brought to the test of professional examination a\ul 
 experiment, as will be evident from a comparison of the two reports. 
 This report of Mr. Moore gave a fresh impetus to public curiosity ; 
 and the long talked of plan of a connected navigation between the 
 eastern and western waters, was agitated with renewed interest. 
 Then followed the law of Virginia, and the concurring resolutions 
 of the General Assembly of Maryland (also annexed among the 
 said scheduled documents) passed at the December sessions, 1821, 
 of the Legislatures of those States respectively, for the appointment 
 of two commissioners on the part of each State, among other things 
 to examine into and report the state of the navigation of the Potomac, 
 and to advise and consult as to the measures most advisable to be 
 recommended to, and conjointly adopted by the said States, either 
 for giving aid to the Potomac Company in the further prosecution 
 of the work, or for the more effectual improvement of the navigation 
 of the said river, by other means, &c. 
 
 (5.) The commissioners appointed in pursuance of the said law 
 and resolutions, proceeded, in the summer and autumn of the year 
 1822, to execute their commission in its utmost latitude; with the 
 assistance of the said Thomas Moore, the principal civil engineer 
 attached to the Board of Public Works of Virginia, and other com¬ 
 petent engineers and surveyors. Their joint report of their pro¬ 
 ceedings, with an appendix of explanatory documents, was duly 
 returned to the respective Governors of the two States in December, 
 1822; and by the said Governors officially communicated to the 
 respective Legislatures of those States, at the December sessions 
 1822 of the same; and were immediately printed and published, at 
 public expense, in both States, by the authority of each Legislature; 
 and a copy of the same report, &c. was in January, 1823, sent with 
 an official and public communication from the Governor of Maryland, 
 to the President of the Senate of the United States, to be laid before 
 the Senate, pursuant to a resolution of the General Assembly of 
 Maryland ; and was, together with the Governor’s communication, 
 then immediately reprinted and republished by order of the Senate, 
 among its public documents: each of the printed copies, so printed 
 and published by authority of the Legislature of Maryland, and of 
 the Senate of the United States, is hereto annexed among the 
 scheduled documents. 
 
 (6.) These respondents also refer to the original communication 
 from the Governor to the General Assembly of Maryland, at the 
 December session, 1821, and the report of the committee of the 
 House of Delegates at that session thereon, as printed and published 
 
i 18 
 
 by authority of the said House, and hereto also annexed among the 
 said scheduled documents. 
 
 (7.) At the same sessions of the two Legislatures of Virginia and 
 Maryland, to which the report of the said commissioners was com¬ 
 municated by their respective Governors, applications were made 
 to each Legislature, by a number of individuals and corporations, 
 acting in concert ; for a charter to a new Company, in place of the 
 old Potomac Company, upon certain terms for the surrender of the 
 charter of the latter, approved by them. 
 
 (8.) This new charter, connected with a provision for a consider¬ 
 able part of the stock to be taken by each State, was at that time 
 earnestly solicited by the persons principally interested in the scheme ; 
 and especially by the three corporate cities in the District of Colum¬ 
 bia, who deputed proper agents to solicit and advance the plan, with 
 the two Legislatures. Such progress was made in this matter in 
 the Legislature of Maryland, that, in January, 1823, a bill to estab¬ 
 lish the Potomac Canal Company, was reported by a committee to 
 the House of Delegates; one of the copies of which, as printed by 
 the authority of the said House, is hereto annexed among the said 
 scheduled documents. But as this was accompanied by a proposi¬ 
 tion for a large pecuniary contribution from the State, which met 
 with considerable objection and difficulty in the Assembly, and with¬ 
 out which the friends of the bill did not deem it material to press the 
 enactment of the charter, that session passed over without any 
 definitive enactment on the subject. At the contemporary session of 
 the Virginia Legislature, on the 22d of February, 1823, an act 
 incorporating the Potomac Canal Company did pass; an authentic 
 copy of which is also annexed among the said scheduled documents. 
 
 (9.) The original bill had been presented to the Virginia Legisla¬ 
 ture, and the enactment of it solicited in the same terms as that above 
 mentioned, in the Maryland Legislature ; and underwent, in its pro¬ 
 gress, sundry changes and modifications, originating with, and sug¬ 
 gested by, particular members of the Virginia Assembly. 
 
 (10.) About the time that the proceedings were going on in the 
 two State Legislatures, the subject was brought before Congress, in 
 consequence of sundry memorials from the inhabitants of Pennsyl¬ 
 vania, Maryland, and Virginia; and of resolutions moved in Con¬ 
 gress on the suggestion of certain members of that body. For the 
 progress of that body, in considering the subject and preparing mea¬ 
 sures for the advancement of the projected canal in the winter of 
 1821-2, and the ensuing Spring, these respondents refer to the print¬ 
 ed and official report of the proceedings of the House of Representa¬ 
 tives of the United States, at the first session of the seventeenth Con¬ 
 gress, mentioned in the annexed schedule. 
 
 (11.) Before the sessions of the two Legislatures of Virginia and 
 Maryland for December, 1823, when the solicitations for the final 
 enactment of the charter were intended to be renewed with unabated 
 activity and zeal, the views of the numerous individuals and com¬ 
 munities, interested in the business, were considerably extended and 
 13 
 
114 
 
 improved in the scope and objects of the immediate plan of a canal. 
 The great scheme of a canal, not confined to the Potomac region, 
 but forming a connected navigation between the head waters of that 
 river and the western waters, even to Lake Erie, had excited such 
 general attention, and so intense an interest throughout the country, 
 that the people of the States of Virginia, Maryland, Pennsylvania, 
 and Ohio, and of the District of Columbia, solemnly appointed nu¬ 
 merous delegates, from among their most respectable and influential 
 citizens, to meet in convention at the Seat of the General Govern¬ 
 ment, and there consult and co-operate for the advancement of the 
 common object. This convention held its first session at Washing¬ 
 ton, in November, 1823, and its second session at the same place, in 
 December, 1826 : the debates and proceedings in both of which were 
 public, and were respectively printed and published immediately after 
 each session of the convention ; and an authentic copy of all of which, 
 collected in one pamphlet, containing a second printed edition of the 
 proceedings of the first session, together with the proceedings of the se¬ 
 cond, printed and published immediately after its adjournment, is 
 hereto annexed among the said scheduled documents. 
 
 (12.) From the time of the organization of this body, the whole 
 management of the undertaking, the business of maturing its plan, 
 of promoting and soliciting its general interests, and the grant of a 
 charter and public patronage from the several Legislatures and Go¬ 
 vernments upon which it more particularly depended, and in fulfil¬ 
 ment of the enlarged and beneficial views disclosed in the proceed¬ 
 ings of the convention, devolved upon that body, and the several 
 standing committees appointed by, and acting under, its authority, 
 as recorded in its proceedings; reinforced by the occasional repre¬ 
 sentations and memorials of the corporate cities in the District of 
 Columbia, and the commissioners appointed by the Executives of 
 Virginia and Maryland, and the President of the United States, to 
 open subscriptions for the capital stock of the company, pursuant to 
 the charter finally obtained. The report of the Central Committee 
 of the said convention, as printed in the aforesaid proceedings of its 
 second session, in December, 1826, correctly details the actings and 
 doings of that and its associate committees, and the general objects 
 and results of their labors during the recess of the convention ; and 
 these respondents refer to the same, among other of the recorded and 
 published proceedings of the said convention, as part of this their 
 answer. For the further proceedings of the said convention and its 
 committees, and of other parties interested in the public project of 
 tbe Chesapeake and Ohio Canal, and for the action of the public au¬ 
 thorities upon the subject, from the adjournment of the first session 
 of the said convention, in November, 1823, down to the passage of 
 the act of Congress of the 24th May, 1828, authorizing a subscrip¬ 
 tion to the stock of the Chesapeake and Ohio Canal Company, the 
 respondents refer to all and singular the public proceedings and acts 
 of the Legislatures of Virginia, Maryland, and Pennsylvania, and 
 of the Congress of the United States, and the several committees of 
 
115 
 
 those bodies, as recorded and published in their respective journals, 
 reports, documents, and bodies of laws ; the whole of which, in any 
 manner relating to the subject of the Chesapeake and Ohio Canal, its 
 plan, course, and construction, to its adoption by the public authori¬ 
 ties as a work of national import, to the interest taken in it by the 
 several States and the United States, to the incorporation of this 
 company, and to all the preparatory legislative deliberations, mea¬ 
 sures, and proceedings, leading to that act, or consequent to it, these 
 respondents pray may be referred to, and taken by this Court as 
 part and parcel of this answer, and as public, authentic, and noto¬ 
 rious in themselves. 
 
 (13.) From these documents, the respondents deem it material by 
 way of illustration, here to recapitulate only the following facts, 
 which are verified in detail by the said documents, and are true and 
 of public notoriety. 
 
 (14.) At the opening of the first session of the Eighteenth Con¬ 
 gress, in December, 1823, the President of the United States, in his 
 message to Congress, having direct reference to the said* convention, 
 and its proceedings in the month of November preceding, mentioned, 
 with decided approbation, the plan of the Chesapeake and Ohio Ca¬ 
 nal, as having been suggested by many patriotic and enlightened 
 citizens, and recommended an adequate appropriation for the em¬ 
 ployment of a suitable number of officers of the corps of Engineers 
 to examine the ground and report their opinion thereon ; and, also, 
 to extend their examination to the several routes through which the 
 waters of the Ohio may be connected, by canals, with those of Lake 
 Erie- 
 
 (15.) This, among other important objects of internal improve¬ 
 ment, Laving been thus officially brought before Congress, the whole 
 subject was referred to a committee of that body, called the Com¬ 
 mittee on Roads and Canals, who, at the same session, reported a 
 bill which was passed on the thirtieth of April, 1824, appropriating 
 the sum of thirty thousand dollars for the purpose of procuring the 
 necessary surveys, plans, and estimates, upon the subject of roads 
 ind canals. In *he month of May following, the President of the 
 Jnited States appointed, from among the corps of Engineers, and 
 he Topographical and Civil Engineers in the service of the United 
 tates, a Board of Internal Improvement, with assistants, to super- 
 Rend the execution of the provisions of the said act; and attached 
 > the said Board several officers of the corps of Engineers and of 
 \e Topographical Engineers, with sundry civil engineers and sur- 
 ^yors in the service of the United States, to perform the practical 
 derations in the field, under the direction of the Board. 
 
 (16.) The Board was instructed “to make an immediate recon- 
 rissance of the country between the tide waters of the Potomac and 
 ti head of steam-boat navigation of the Ohio, and between the Ohio 
 ai Lake Erie, for the purpose of ascertaining the practicability of 
 aommunication between those points, of designating the most suit- 
 ae route for the same, and of forming plans and estimates , in detail. 
 
116 
 
 of the expense of execution*” The Board was also instructed to use 
 every possible exertion to have their report on this important line of 
 communication prepared in time to be submitted to Congress at their 
 next session. These examinations and surveys were prosecuted with 
 the utmost vigor and diligence; and, on the 14th of February, 1825, 
 the President of the United States communicated, in a special mes¬ 
 sage to both Houses of Congress, the result of the labors of the Board 
 and their assistant corps, as far as they had then proceeded; which 
 was immediately printed and published by order of each House re¬ 
 spectively. These operations were resumed and completed, under 
 the direction of the Board, in the ensuing season, and a detailed re¬ 
 port of the same made by the Board to the Chief Engineer, on the 
 23d day of October, 1826 ; which was, in like manner, communicated 
 to both Houses of Congress, in special messages from the President, 
 on the 7th of December, 1826, and, in like manner, immediately pub¬ 
 lished and printed by order of each House. These several reports 
 were accompanied by detailed descriptions and surveys, and large 
 maps and profiles; and exhibited, with the utmost clearness and 
 minuteness, the whole route of the canal from Georgetown and the 
 head of the tide water of the Potomac to Cumberland, and thence to 
 its western termination ; the plans and various sections of the canal, 
 the geography and topography of the ground through which it pass¬ 
 ed, with the detailed estimates of its cost, including the section of the 
 canal from the head of tide water to Cumberland; and minutely ex¬ 
 hibiting its course, and its various subdivisions and sections, on the 
 western and northern, or, as expressed by the engineers, the left bank 
 of the river between those points. The printing of this last report 
 having been expedited by the printers to Congress, in anticipation of 
 the President’s message, and of the orders of the two Houses, seve¬ 
 ral copies of the same were laid before the said convention, at its se¬ 
 cond session, by direction of the Secretary at War, and formed the 
 ground work of the proceedings of that body and its committee, to¬ 
 wards a corrected estimate of the cost of the canal; the high esti¬ 
 mates of the cost, given by the Board of Internal Improvement, be 
 ing considered as founded on erroneous data. 
 
 (17.) During that same session of Congress, several members o 
 the House of Representatives, considering the disagreement betweei 
 the estimates of the Convention and those of the Board of Interna 
 Improvement, and the necessity of the most exact preparatory esti 
 mates, as well for the success of the various applications to Cor 
 gress and to the States, for subscriptions to the stock of the Cana 
 and other aids, as for the general recommendation of the plan to t\ 
 public, requested the President to submit these estimates to the rev 
 sion of practical civil engineers, of long-tried experience and ski. 
 The President accordingly appointed James Geddes and Nathan 
 Roberts, two eminent civil engineers, who, to great profession! 
 skill, added a long experience in the practical execution of otlr 
 works of a similar description, to view and resurvey the route of te 
 said canal, and revise the estimates of its cost. This duty was pe 
 
117 
 
 formed by these engineers, with all diligence and despatch ; and 
 their detailed report of their surveys and estimates of the same, from 
 Cumberland, or about one mile below Cumberland, to Georgetown, 
 was duly returned to the Engineer Department, accompanied by de¬ 
 tailed descriptions, surveys and maps of the route and site of the ca¬ 
 nal, between those points. This last report and its results were 5 
 largely quoted and commented on in a report of the Committee 
 on Roads and Canals, in the House of Representatives of the United 
 States, on the 11th February, 1828, which report of the said Com¬ 
 mittee was then immediately printed and published, by order of the 
 House, in the due course of its proceedings ; and on the 26th $f the 
 same month, a resolution passed the House, calling upon the Secreta¬ 
 ry of War for the report, at large, of the said civil engineers ; and 
 the same was accordingly transmitted to the House on the 10th of 
 March following ; and then immediately printed and published by 
 order of the House. 
 
 (18 .) And these Respondents, further answering, say, that upon 
 the completion of their charter by the act of Congress passed on the 
 3d March, 1825, assenting to and confirming the acts of Virginia and 
 Maryland, commissioners were duly appointed by the Executives of 
 Virginia and Maryland, and the Government of the United States, 
 pursuant to the directions of the charter, to open books for receiving 
 subscriptions to the capital stock of the Chesapeake and Ohio Canal 
 Company ; and the said Commissioners, in pursuance and execution 
 of their appointment and authority, on the 20th of August, 1827, 
 published due notice that such books would be open at various places 
 in the United States, on the 1st of October then next ensuing; 
 which notice was published weekly in various places, at or as near 
 as practicable, the respective places Avhere the books were to be 
 severally opened; and among others in the city of Baltimore; a 
 copy of that published iri the National Intelligencer, at the City of 
 Washington, is annexed ; and the others were in the like form, only 
 designating other Banks or Agents, and other places for receiving 
 the subscriptions in the different sets of books, all to be opened on 
 the same day. The opening of the books had been so long postponed, 
 at the request of the central committee of the said convention, in or¬ 
 der to obtain, in the first instance, the most satisfactory estimates of 
 the cost of the canal ; in the mean time the conflicting estimates of 
 the Board of Internal Improvement and of the said Canal Convention 
 were before the public ; aad the Engineers, Geddes and Roberts, 
 were then engaged in their surveys of the route and revision of thS 
 estimates ; whose report, though not then completed, would, as was 
 well understood, confirm, upon the most unquestionable data and 
 calculations, the lowest estimates. 
 
 (19.) Pursuant to the said notice, the subscription books were duly 
 opened, on the said first of October, 1827, and subscriptions to a 
 large amount were received : a correct summary of the different 
 
 amounts whereof, at different periods, from the -- day of 
 
 -, till the - day of-, is hereto annexed. 
 
118 
 
 (20.) The subscriptions on the part of the United States, and of 
 the State of Maryland, as authorized by their respective laws, have 
 been duly fulfilled, upon the conditions respectively prescribed by 
 them, and were made at the respective dates mentioned in the said 
 summary. Notwithstanding the subscriptions amounted, so much 
 sooner to the one-fourth of the capital stock, required by the charter, 
 to give immediate effect to the incorporation of the Company ; it was 
 deemed advisable to postpone a call of the stockholders, for the 
 election of their President and Directors, in the certain expectation 
 of an act, at the then ensuing session of Congress, authorizing a 
 subscription on the part of the United States ; and in order to give an 
 opportunity to Maryland and the United States, on the completion of 
 their respective subscription, to vote at the said elections, and on 
 other matters to be brought before the meeting. The said Commis¬ 
 sioners, accordingly, on the 5th day of March, 1828, called a meet¬ 
 ing of the stockholders, for the purpose of electing their President 
 and Directors, on the 7th day of April next ensuing ; by which day 
 it was expected the two subscriptions just mentioned would be com¬ 
 pleted, by means of a bill then pending in Congress. But some un¬ 
 expected delays in the passage of this bill occurring, the call was 
 postponed ; and on the 26th day of May thereafter (the said bill 
 authorizing the subscription of one million of dollars on the part 
 of the United States having passed on the 24th of the same month) 
 the call was renewed, and the general meeting of the stockholders 
 appointed for the 20th of June, 1828. These calls of the general 
 meeting of the stockholders, and the intermediate postponement of the 
 first, were duly published by the said commissioners, in several pub¬ 
 lic prints, or newspapers, at various places in the United States, and 
 among others, at the city of Baltimore, pursuant to the directions of 
 the charter; copies of which, as published in the National Intelli¬ 
 gencer at the city of Washington, are hereto annexed. 
 
 (21.) Pursuant to the last of said calls, the stockholders assem¬ 
 bled at the City Hall, in the City of Washington, on the 20th day of 
 June, 1828, and duly elected their President and Directors, who 
 were immediately organized according to law, and have ever since 
 been diligently engaged in prosecuting the execution of the canal, 
 pursuant to their charter, w ith all practicable vigor and despatch. 
 
 (22.) The Potomac Company, by their several authentic and va¬ 
 lid acts, in their corporate capacity, on the 16th of May, 1825, the 
 10th of July, 4th and 15th of August, 1828, duly declared their as¬ 
 sent to the provisions of the said charter of the Chesapeake and Ohio 
 Canal Company, in the manner prescribed by that charter; and duly 
 surrendered their charter, and conveyed, in due form of law, to the 
 Chesapeake and Ohio Canal Company, all the property, rights, and 
 privileges by them owned and possessed under their charter; which 
 surrender and transfer was duiy accepted by the Chesapeake and Ohio 
 Canal Company ; true copies of all which several acts of the two 
 Companies are hereto annexed as part of this answer. 
 
 (2S.) The last named Company, also, at their said general meeting 
 
119 
 
 in June, 1828, anti at several adjourned meetings of the same, in June 
 and July of that year, adopted and passed, among others, the several 
 resolutions, by-laws, and regulations, printed copies of which are an¬ 
 nexed among the said scheduled documents; and among these, the an¬ 
 nexed resolution adopting the route and site of the canal surveyed 
 and laid down by the United States Engineers, and by Messrs. Geddes 
 and Roberts, &c. 
 
 (24.) Among the works done under the orders of the President and 
 Directors, since the organization of this Company they have caused 
 detailed plans of their canal to be surveyed and laid down by their 
 engineers in a practical form for contractors, upon the route before 
 surveyed and laid down under the direction of the said Board of In¬ 
 ternal Improvement, and by Messrs. Geddes & Roberts, as aforesaid, 
 from Georgetown, in the District of Columbia, to Williamsport, in 
 Washington county,Maryland; and for the distance of about 48 miles 
 from Georgetown, up to within about a half mile of the Point of Rocks, 
 or foot of the Catoctin Mountain, the canal has been actually put under 
 contract, for execution, upon these plans ; and the work was actually 
 commenced by the Contractors, in September last, has ever since 
 been diligently and efficiently prosecuted by them, and such progress 
 made in it, as leaves no rational doubt of its completion, upon the 
 most enlarged scale and improved plan contemplated by its projec¬ 
 tors, far within the time prescribed by the charter; and the said 
 President and Directors would, before now, have had at least so 
 much more of the said canal, as the section from the Point of Rocks, 
 in Frederick, to Williamsport, in Washington, under contract, and 
 in actual progress, but for the interruptions thrown in their way by 
 the complainants, on the route from the former Point to Cumberland. 
 The Respondents, by way of further illustrating the plan and route 
 of their canal, refer to the annexed copies of the plans and surveys of 
 the same, from the same Point of Rocks to Williamsport, executed 
 by their engineer, which they pray may be taken as part of this their 
 answer. 
 
 (25.) As to the pretensions of the complainants to interpose and 
 oust these Respondents of their priority of selection and their vested 
 right in the route of their canal, and to intrude the Rail-Road of 
 the complainants upon the same, these Respondents say, the Legis¬ 
 lature of Maryland never contemplated, by the charter granted to 
 the complainants, any interference with the route selected for the 
 canal; and if there be involved in the terms of that charter any 
 covert or latent construction, or operation in practice, authorizing 
 such interference, (which these Respondents are well advised there is 
 not) and if the parties, who projected the said Rail-Road, and 
 actively promoted and solicited and finally obtained and now enjoy 
 the charter for the same, originally intended that any such latent 
 construction, or operation in practice, should be involved in its 
 terms, with a premeditated design to press the advantage of such in 
 their future operations under their charter (which these Respondents 
 by no means charge, but on the contrary presume the said parties 
 
120 
 
 were at the time direct and sincere in their professed object, and in 
 the ostensible purpose and intent for which they solicited their char¬ 
 ter) then it would be manifest that the Legislature and people of 
 Maryland were misled and deceived into the grant of a charter for 
 the said Rail-Road, contravening the well known views and estab¬ 
 lished policy and interests of the State, long avowed and partially 
 acted on by the Legislature, and the solemn faith and compacts of 
 the State, as well with her co-sovereigns, Virginia, Pennsylvania, 
 and the United States, as with the Potomac Company, with the 
 Chesapeake and Ohio Canal Company, and with the public at large. 
 For not only was any intent (if it existed) to supersede or interfere 
 with the proper route and site of the canal, and occupy the same 
 with the Rail-Road, kept out of view, and reserved and concealed 
 in the minds of the parties who solicited and obtained the Rail-Road 
 charter, but it was studiously and elaborately masked, by ilieir 
 openly professing, and setting up a different and shorter route for 
 the Rail-Road, than any practicable route for the canal : and upon 
 this very difference in the routes, they valued themselves as having 
 projected an improved mode of intercourse with the west, very 
 superior to the canal. 
 
 (26.) The project of the said Rail-Road was originated and set in 
 motion at a meeting of a number of the citizens of Baltimore, held 
 at that city, on the 12th and 19th of February, 1827. The proceed¬ 
 ings of that meeting, with a report of a committee unanimously ap¬ 
 proved by the meeting, were printed and published by its authority; 
 the whole train of the elaborate reasonings of which tends to estab¬ 
 lish two points : 1st. The intrinsic advantages, in point of expedi¬ 
 tion and convenience of a Rail-Road over a canal. 2dly. The par¬ 
 ticular advantages of the projected Rail-Road from Baltimore to the 
 Ohio, over the Chesapeake and Ohio Canal; among the most decided 
 of which was, that the former was to reach the western trade, by a 
 different and shorter route. Upon this latter point, the most minute 
 calculations are made of the differences, in distance and time, be¬ 
 tween the known route of the canal and the intended route of the 
 Rail-Road. 
 
 (27.) The direct route proposed for the Rail-Road, as contrasted 
 with the circuitous route chosen for the canal, was vauntingly print¬ 
 ed in capitals; and its various advantages reiterated in every form 
 calculated to illustrate the superiority of the Rail-Road over the ca¬ 
 nal. The charter of the Rail-Road Company was immediately so¬ 
 licited and obtained of the Legislature of Maryland, then in session, 
 by the committee, or some of them, named in the said printed pro¬ 
 ceedings ; the pamphlet containing the said proceedings, was circu¬ 
 lated among the members of the Legislature, and the same topics 
 were enforced and illustrated by the committee in the course of their 
 solicitations. All the active and influential persons composing the 
 said meeting and its committees, became members of the corporation 
 when the said Rail-Koad Company became incorporated; and the 
 President and Directors of that Company were chosen from among 
 
the same description of persons ; and so continued to the time of the 
 filing of the complainants’said bills, and yet so continue, as these 
 Respondents are credibly and certainly informed, and do verily be¬ 
 lieve. 
 
 (28.) One of the said pamphlets, so published by the said meeting, 
 or by its committee, is hereto annexed among the schedule docu¬ 
 ments ; and to that as well as to the representations and memorials 
 of the said Rail-Road committee, to the Legislature, and the pro¬ 
 ceedings of the Legislature thereon, preparatory to the grant of the 
 said Rail-Road charter: these Respondents pray that reference may 
 be had as part and parcel of this answer. 
 
 (29.) These Respondents are further credibly informed, and verily 
 believe, that, not only was all idea of any interference with the site 
 or route of the canal kept out of view, and masked by the general 
 proposition of a different route for the Rail-Road, studiously im¬ 
 pressed on the Legislature, and promulgated to the public, as one of 
 the pre-eminent merits of the Rail-Road project, but that the said par¬ 
 ties, so engaged and entrusted in that project, and in the promotion 
 of it as aforesaid, and now claiming the benefits of the charter for 
 the same, did, both before and after the grant of that charter, and 
 while the same was in a course of solicitation before the Legisla¬ 
 ture, and down to a period considerably posterior to the subscription 
 of the stock, and the formation of the Company, even specify the 
 difference between the two routes, both to the members of the Legis¬ 
 lature, and otherwise to the public; that is, a direct route from 
 Baltimore to the Ohio; cutting down the hills between Baltimore 
 and theMonocacy,50 or 60 feet,by machinery,and forming an inclin¬ 
 ed plane to the Monocafcy; and then crossing the mountains in the 
 direct route to the Ohio, by a number of stationary steam engines, 
 computed at the number of a hundred; that afterwards, in the win¬ 
 ter of 1827-8, when the complainants were soliciting of the Legis¬ 
 lature, the law authorizing a subscription on the part of the State, 
 to the Rail-Road stock, the President of the said Rail-Road Com¬ 
 pany, in behalf of the Company, assured the members of the Legis¬ 
 lature, and especially the members from the Western counties, that 
 the Rail-Road would pass by Westminister, through Harman’s Gap 
 to Williamsport, and actually accepted the services of Mr. James 
 Johnson, of Frederick, to explore the mountains on that route; that 
 the said parties, on all these occasions, and continually, until they 
 formed their sudden resolution in May, 1828 , to pounce upon the 
 route and site chosen for the canal, publicly and distinctly disclaim¬ 
 ed any rivalship or interference with the canal; and gave out that 
 the comparative directness and shortness of the route of the Rail- 
 Road, and its other advantages,would place it above all competition 
 from the canal. 
 
 (30.) If, on the other hand, the new route now proposed for the 
 Rail-Road, and the idea of ousting the Chesapeake and Ohio Canal 
 of its chosen and proper route were after-thoughts, originating with 
 the complainants, or suggested to them, after their organization as a 
 14 
 
122 
 
 body corporate under their charter, then it is equally a perversion 
 and abuse, in practice, of the original and genuine intent of their 
 charter, and the privileges which that instrument was designed to 
 confer on them. These Respondents are not certainly or precisely 
 informed at what time such change in their views was effected, or 
 upon what ostensible grounds; but these Respondents have good 
 reason to think and believe, and do verily think and believe, that it 
 was not until after the advertisements of the said Commissioners 
 notifying a call of the stockholders of the Chesapeake and Ohio Ca¬ 
 nal Company, and the near prospect of large subscriptions to the 
 stock of that Company from the State of Maryland and the United 
 States, gave sure promise of its speedy and efficient organization, 
 and suggested to the complainants the policy of some bold ,and ex¬ 
 traordinary measures to defeat it. The actual operations of the 
 complainants, through their agents, in appropriating to themselves 
 the route and site chosen for the canal, did not commence, as these 
 Respondents have good reason to believe, and do verily believe, and 
 so far as they have been able to ascertain from the documents and 
 exhibits of the complainants, or other evidence, till some time about 
 the middle of May, 1828. 
 
 (31.) These respondents are further credibly and certainly in¬ 
 formed, and do verily believe, that the real tendency and effect of 
 those operations, as an adversary interference with the canal, were 
 studiously masked and concealed by the complainants and their 
 agents ; and that they pushed them on with unusual and otherwise 
 uncalled for hurry and precipitation, for the direct and concerted 
 purpose of completely forestalling the chosen and well known route 
 and site of the canal, before any of the persons, materially interested 
 in the conservation of its rights, could have notice ; and with such 
 views and intents, that the agents, who were employed by the com¬ 
 plainants in making their locations of the rail-road on the route of 
 the canal, gave out to the people in the neighbourhood who witnessed 
 their proceedings, that they were merely making experiments, and 
 intended jio interference with the canal; and some of the persons 
 with whom contracts were made for cessions of their lands, were 
 also informed by such agents, that the only intent and effect of such 
 contracts were to give permission to the surveyors of the rail-road to 
 pass through. So much, however, is certain, that it was not till about 
 the 7th of June, 1828, that the persons principally concerned in the 
 conservation, ad interim , of the rights and interests of the canal, (as 
 the said central committee, the said commissioners appointed to open 
 subscription books, and call the first meeting of the stockholders, the 
 Secretary of the Treasury representing the interest of the United 
 States in the stock of the company, and other principal stockholders) 
 received with the utmost surprise, the first information that the 
 agents of the complainants were proceeding, with the utmost haste 
 and secrecy, in an attempt to forestall the chosen route and site of 
 the canal, by making their surveys upon the most important and 
 indispensable parts of it, and taking up the ground by contracts 
 
128 
 
 with the adjacent proprietors. Measures were immediately taken at 
 Washington, by the persons principally interested, and with the 
 concurrence of the Secretary of the Treasury, to despatch proper 
 agents and counsel to ascertain the true state of the case, and to 
 take the proper measures for the protection of the rights of the 
 Canal Company. The bill of injunction, in the name of this com¬ 
 pany and of the Potomac Company, against the now complainants, 
 &c. in Washington County Court, and the injunction thereon 
 grounded, on the 10th of June, 1828, to which the complainants 
 have referred in their said bills, were the result of those measures. 
 To that bill, a copy of which is hereto annexed, these respondents 
 also refer, and pray that it may be taken as part of this answer; 
 now here re-asserting the material facts therein stated, and all the 
 rights and immunities therein claimed and asserted on behalf of this 
 company ; all of which they pray that they may have the like benefit, 
 as if ever so formally averred or pleaded in this answer. 
 
 (32.) These respondents further answering say, that at the Point 
 of rocks, where 'the Potomac intersects the ridge of the Catoctin 
 mountain, and where the pretended route of the said rail-road is 
 described by the complainants in their said bills to strike tfie Poto¬ 
 mac river, there is one of those narrow passes in the actual route and 
 site of the canal, as officially and definitively selected, surveyed and 
 and laid down as aforesaid, which presents no choice of ground for 
 the canal ; but where for a considerable distance up the river along 
 the foot of the mountain and its spurs, the canal is confined, by the 
 nature of the ground, within certain primeval and unremovable 
 barriers ; as is more particularly shown and illustrated by the topo¬ 
 graphical descriptions, maps and profiles of the engineers, herewith 
 exhibited and above referred to. Through the whole of this pass, 
 the space between the jutting and precipitous rocks, on the one hand, 
 and the river on the other, is so narrow, that in order to obtain the 
 proper and necessary breadth for the canal and its towing path, a 
 solid and wide wall must he constructed in the river;—and if the 
 canal be intercepted and cut off by the rail-road, or otherwise, from 
 that9ingle route through this pass, it must be completely intercepted 
 and cut off from the whole of its routes above ; and be, either 
 entirely stopped and defeated, or compelled to the precarious, dan¬ 
 gerous, and enormously expensive, and every way inconvenient and 
 burthensome expedient of crossing to the opposite side of the river 
 on an aqueduct; and then, in order to regain its route to its western 
 terminus, of recrossing the river on another such aqueduct, at such 
 unknown and uncertain point above, certainly not lower than Cum¬ 
 berland, as where it may please the complainants to allow them verge 
 and space enough. Through all the space between these two points, 
 on the southern and eastern banks of the river, these respondents 
 will then have to explore a new route and site for their canal; all 
 the elaborate reconnoissances, surveys, maps, plans, &c. by which the 
 present and appropriate route and site of the canal have been de¬ 
 termined; all the estimates already made of its cost, inseparable as 
 
124 
 
 are their data from the localities of the actual route and site of the 
 canal so determined, and upon the faith of which and of the already 
 ascertained practicability of that route, the subscriptions to the stock 
 of the canal have been made ; all the labour and expenses of years 
 consumed by the engineers of the United States and of this company 
 and their coadjutors, in ascertaining these results, must then be 
 utterly wasted and thrown away; and the whole process be gone 
 over again, on the opposite side of the river, at an immense increase 
 of expense and loss of time to the said canal company, and to the 
 utter peril of the franchise bestowed on them by their charter, and 
 every way to their inconvenience and oppression. Besides, if it 
 were possible (which it is not) for the said canal company, after 
 deserting their appropriate route, as already specifically selected, 
 surveyed and laid down, and conceding to the rail-road the choice 
 of the site next the river, at any labour or expense within the reason¬ 
 able compass of human means, at all commensurate with the object, 
 to lay off and conduct the canal outside of the rail-road, by cutting 
 down the sides of the mountains and rocky precipices, that bound 
 their operation through the said pass, and through many other nar¬ 
 row and difficult passes of a like description, and presenting some 
 of them equal, and others nearly equal difficulties on the route in 
 controversy, from the Point of Rocks to Cumberland, to the proper 
 level, and of the proper breadth for the canal and its towing path, so 
 as to keep the canal on the same side of the river, with the rail-road 
 interposed between it and the river all the way between those points; 
 still the inconveniences and impediments to the proper construction, 
 supply and use of the canal, would be immense and incalculable, if 
 not insuperable, by its being cut off and intercepted, in so great a 
 portion of its route, from its cognate source and appendage the 
 river, and the numerous and necessary feeders and communications 
 between it and the river; the frequent and continual recurring neces¬ 
 sity of such communications throughout that route, being indispensa¬ 
 ble alike to the proper construction of the canal and its appendages, as 
 to the purposes of intercourse, commerce and navigation, for which 
 alone it was and is designed. The above mentioned pass at the Point 
 of Rocks, and for some distance above the point so called, is not the 
 only one of that description and presenting the like narrow and diffi¬ 
 cult bounds to the canal, on the route in controversy from that point 
 to Cumberland ; but there are numerous others on that route, where 
 the Potomac breaks through the numerous ridges, mountains and 
 rocky precipices, where it is hemmed in by rocky and high banks, 
 with a very narrow space between; and where in some instances 
 equal, and, in other instances, nearly equal difficulty, labor and 
 expense to open and improve the site for the passage of the canal and 
 its appendages, occur as at the Point of Rocks ; as is more particu¬ 
 larly shown and illustrated by the documents above referred to and 
 cited for the topography of this last mentioned pass. 
 
 (33.) These respondents submit to the equity and discretion of 
 his Court, that even if originally, and by virtue of their prior grants 
 
125 
 
 and franchises, they had no priority of right to the choice and selec¬ 
 tion of the route and site of their canal, along the margin and bank 
 of the river Potomac; if no authorized, determinate, and binding 
 selection and designation of such route and site had been made; and 
 if the complainants stood on a foot of perfect equality, as to the date 
 and origin of their franchise; still the preferable right of this com¬ 
 pany to conduct and construct their canal on the route and site in 
 controversy, is just as absolutely determined by a concurrence of 
 equitable and cogent circumstances; by the intrinsic qualities and 
 faculties of these two works, and by their respective relations to the 
 means, the objects and the uses of their construction ; and to the 
 nature of the obstructions and public inconveniences which they are 
 designed to remove by artificial means. Because, according to the 
 complainants’ own shewing, and the facts are otherwise true and 
 notorious, they have the choice of two or more practicable routes for 
 their rail-road, without any interference with the canal, or connec¬ 
 tion with, or even approximation to the river; the different routes 
 onl/ presenting some differences in the comparative labour and ex¬ 
 pense of construction; and these compensated, if they occur, with 
 any considerable increase, on the more northern route originally 
 proposed for the rail-road, by the advantages and savings, from 
 directness qf course and shortness of distance, as the principal and 
 leading personages, both among the original projectors and pro¬ 
 moters, and the present managers and proprietors of the rail-road, 
 have repeatedly averred and publicly contended : the principle, and 
 the operation of the lifting power of stationary steam engines, by 
 which the rail-road overcomes ascents, and gains new levels, admit 
 of an infinitely greater diversity and extent of application, than 
 that of the canal, circumscribed and limited as it is by water levels, 
 and arc perfectly practicable and convenient, and within the ordina¬ 
 ry compass of that power, either to overcome all the necessary as¬ 
 cents on the more northern and direct route first proposed for the 
 said rail-road ; or if, what the complainants designate the southern 
 and circuitous route be preferred by them, to assume, with ease and 
 convenience, a higher level than the canal, on that «oute, and leave 
 the canal ample verge and room between the rail-road and the river : 
 there is no necessary or proper connection or dependence between 
 the rail-road and the river, either intrinsically, as regards the con¬ 
 struction, appendages and uses of the rail-road, or relatively, as re¬ 
 gards the purposes of intercourse, trade and commerce, which the 
 rail-road was designed to subserve; whereas, the river is, as it were, 
 the life-blood of the canal; and continual access and frequent com¬ 
 munication, from the one to the other, are inseparable, from the very 
 idea of the canal : And lastly, the complainants, before they took 
 any step towards a change of their original route for the one now in 
 controversy, or towards any claim or appropriation of the latter, or 
 even contemplated any such change, claim or appropriation, had the 
 most ample, direct and conclusive knowledge and notice of all the 
 steps that had been taken to designate and appropriate this same 
 
126 
 
 route for the canal, they had the most certain knowledge that every 
 procedure, practicable in the nature of things, had been adopted to 
 consummate and render effectual such designation and appropriation 
 of the canal route and site, both before and after the consummation of 
 the charter to the said canal company, by the passage of the act of Con¬ 
 gress, confirming it, and before the charter of the Rail-Road Compa¬ 
 ny was either enacted or projected; and that such designation and 
 appropriation of the route and site of the canal, its ascertained 
 practicabilit}' and facilities of execution on that route, and the esti¬ 
 mate of its capital and cost, which were founded on the local circum¬ 
 stances of that route, all entered into the considerations, motives, 
 and terms of the charter, and more distinctly of the subscriptions to 
 the capital stock created by it; and with the entire notice and con¬ 
 sciousness of all these circumstances, the complainants, at the very 
 moment when they perceived that the said Canal Company, then 
 legally constituted a body corporate, werejust coming into the actual 
 fruition of the right thus claimed and secured to them, took advan¬ 
 tage of their want of executive organization to forestall and oust 
 them of that right, under the naked pretext, that the proprietary 
 • right and title of the lands, necessary to be purchased or condemned 
 
 of individuals, had not been technically vested in the company. But 
 these respondents are well advised by counsel, that they may, law¬ 
 fully and of right, maintain before all courts of law or equity, and 
 in all other places whatsoever, and they do now here maintain, that 
 independent of any prior and specific location, survey or appropria¬ 
 tion. of any precise site or route of the canal, there was originally 
 vested in and guarantied to the late Potomac Company, by virtue of 
 their charter, the exclusive privilege, use and property of the entire 
 stream, bed and channel of the river Potomac* with its branches 
 and tributaries, and whatsoever, as part, parcel or appendage of the 
 river, constituted in any part of the public domain, from tide water 
 to the highest place practicable for navigation on the north branch 
 of that river; and over and above these, the prior and exclusive elec¬ 
 tion, pre-emption and appropriation by the prescribed modes of pur¬ 
 chase or condemnation from all the adjacent lands of the individual 
 proprietors, all along the banks, cliffs and low grounds contiguous 
 . to the river, and within the proper sphere and compass of any of 
 the authorized operations of the company, of the proper ground 
 for the route and site of the canal or canals, and the auxiliary 
 works and appendages of the same, and of the materials for 
 the same, contemplated and authorized by that charter ; that this 
 exclusive right and priority of election, pre-emption and ap¬ 
 propriation, extended to all the lands of individuals and public do¬ 
 mains, within the precincts of any of the actual or possible operations 
 ot the said company, authorized by their said charter; and that, 
 within those precincts no other corporation in present or future exis¬ 
 tence, nor any other description or body of men whatever, collectively 
 or individually, had, or could acquire any right or title, under any 
 pretence of a right of way, road, or improvement whatsoever. 
 
427 
 
 public or private, in any manner to restrict or confine the said Potomac 
 Company, or their authorized operations under their charter, to any 
 one among any possible number of locations or sites, or in any man¬ 
 ner to diminish or circumscribe their free choice and election of the 
 same; far less, to exclude them from priority in the choice and elec¬ 
 tion of the only, or of the most eligible, practicable and convenient 
 and still less of previously elected and designated locations or sites 
 for the proper execution of the works authorized by their charter. 
 That all these rights and privileges, in all their integrity, force and 
 efficacy, have been, and are, duly and indefensibly transferred to, 
 and vested in these respondents, by virtue of their said charter, and 
 of the surrender and transfer to them from the late Potomac Compa¬ 
 ny ; with such extension and modification as the terms of this new 
 charter, and the extended and improved scheme and plan of the works 
 thereby authorized, prescribe or require: That, independent of any 
 proprietary rights or corporate privileges and immunities, specifi¬ 
 cally derived by these respondents from the late Potomac Company, 
 all the rights, privileges and immunities hereinbefore described or 
 mentioned as vested in and guarantied to the Potomac Company, 
 and all the analagous rights, privileges and immunities, enlarged 
 and modified in conformity to the scheme and provisions of the new 
 charter of these respondents, and to the more extended and compre* 
 hensive plan of the works, and improvements thereby authorized, 
 were and are, indefeasibly vested in and guarantied to these respon¬ 
 dents, by the sole force and effect of their own charter : That the 
 charter of the said Rail Road Company, does not, and of right, could 
 not, in terms, abolish or take away, or in any manner diminish or 
 alter, in the whole, or in part, either of the prior charters to said 
 Potomac Company, and to these respondents, or any of the corpor¬ 
 ate rights, privileges or immunities, expressly granted, or necessari¬ 
 ly inferred, from the said prior charters, or either of them, and that 
 neither of the said charters, nor the franchises thereby created, can 
 be abolished, taken away, or in any manner altered or diminished 
 by implication, even if the Legislature of Maryland were competent 
 which it was not, when the charter of the said Rail Road Company 
 was granted, to pass any law, or grant any charter, or any right, 
 title, privilege or authority to be exercised under such law, or char¬ 
 ter, abolishing, taking away, or materially diminishing the said 
 prior charters, or either of them, or any of the rights, privileges, or 
 immunities, by them, or either of them, communicated to and vested 
 in these respondents. That the charter granted to those respon¬ 
 dents, as well as that to the late Potomac Company, being in the 
 nature, not only of a contract between the sovereign parties to it, on 
 the one hand, and the members of the body corporate thereby created, 
 on the other, but of a solemn and binding compact between those so¬ 
 vereign parties themselves, was, arid is altogether irrepealable and 
 indefeasible, in the whole or in any part, by either of these parties, 
 without the concurrence of all; or by all without the assent of the 
 corporation in which the rights, privileges and immunities, granted 
 
128 
 
 by such charter, are vested and reside : That the said charter of the 
 complainants, and the authority exercised, or pretended to be exer¬ 
 cised under it, in so far as the same purport, or are, or may be con¬ 
 strued and executed, in derogation of the corporate rights, privile¬ 
 ges or immunities, granted and vested by the said prior charters, or 
 either of them, are repugnant to the Constitution of the United States, 
 and utterly inoperative and void : and lastly, that, whatever the ab¬ 
 stract right of prior choice and election, claimed by these respondents 
 in other passable routes or sites for their canal, and the incidental 
 operations authorized by their charter, the ground designated for the 
 route and site now in controversy, has been effectually elected and 
 appropriated by these respondents, to the exclusion of the complain¬ 
 ants : Of all which matters, these respondents crave all the benefit 
 and advantage in this answer, that they might, or could have had, 
 in any form of equity-pleading whatever. 
 
 ( 34 .) Of all the documents of title, under which the complainants 
 pretend a claim to the route and site, in controversy, for their rail 
 road, and to the lands in controversy, as referred to, and it is presu¬ 
 med, filed with their said bills, these respondents or their counsel have 
 only examined such, as were filed for enrolment in the clerk’s office 
 of Washington county, Maryland, as late as the 10th of June last, 
 and in the clerk’s office of Frederick, as late as the 11th of the same 
 month, and the agreements with Henry and Frederick Dellinger, 
 filed in this court with the complainants’ bills, against those persons, 
 in the same month; the documents, so examined, comprehend, as'these 
 respondents are credibly and certainly informed, and verily believe, 
 the whole of the said pass at and above the Point of Rocks, and some 
 other of the like narrow and difficult passes, on the route in contro¬ 
 versy, and the identical route and site elected, designated and sur¬ 
 veyed for the canal as aforesaid : and as to all the other documents 
 of titles set up and pretended by the complainants in their said bills, 
 and therein referred to as exhibits, such as deeds, agreements, loca¬ 
 tions and specifications of locations, warrants for condemnation, 
 &c., these respondents are not more particularly informed of their 
 nature or authenticity, than what they collect from the allegations 
 of the complainants in their said bills, and from careful inquiries in 
 the country into the nature and extent of the ground covered by the 
 claims of the complainants, in virtue of those documents, without any 
 actual inspection of the documents themselves; and, therefore, for 
 greater certainty, they refer to the said documents and exhibits them¬ 
 selves, and the authentication of the same ; all of which or office co¬ 
 pies of such of the same as have been duly recorded, these respon¬ 
 dents presume, are or ought to be filed as the exhibits referred to by 
 the complainants in their said bills. The ground which these docu¬ 
 ments import an intent to bargain or sell, or appropriate, or in any 
 manner to affect by location or condemnation, and. which the com¬ 
 plainants now claim in virtue thereof, for the route and site of the 
 said rail road,throughout the whole extent of that ground upon or to¬ 
 wards the lineof the river Potomac, includestheidenticalrouteand site 
 
129 
 
 selected, designated and surveyed for the said canal as aforesaid, and 
 all the slight variations of the same in the several reconnoissances, 
 surveys and locations made of the same as aforesaid, and every other 
 practicable route and site for the canal and its appendages on the 
 hither side of the river, from the Point of Rocks to Cumberland ; or 
 if there be any gap in those pretended appropriations of such ground for 
 the rail road, where the ground designated for the route of the canal 
 is not covered by that claimed under those documents, it would be 
 rendered utterly useless and impracticable to these respondents, if 
 the actual claims of the complainants were allowed : but whatever 
 may be the local extent of the ground, so claimed by the complain¬ 
 ants in virtue of their said pretended locations and appropriations of 
 the same, the complainants in their said bills are understood to claim, 
 as the fact is otherwise certain, that it comprehends the whole of the 
 said pass at and above the Point of Rocks, and all the most difficult 
 of the other narrow passes, above described as on the route in con¬ 
 troversy; and without the possession of which, these respondents 
 would be compelled to abandon the whole of the designated route for 
 their canal, without having left to them any practicable route for 
 the same on the hither side of the river. The ground, so claimed by 
 the complainants in virtue of the several titles and documents refer¬ 
 red to in their said bills, extends to the river Potomac itself, compre¬ 
 hending whatever of its margin and water may appertain to the lands 
 or rights of the individual proprietors; and in conducting the said 
 rail road through several of the narrow and difficult passes above- 
 mentioned, the complainants would have to construct walls in the 
 bed of the river, in order to get the proper breadth for .their road, 
 in like manner as these respondents would have to do for their canal 
 at the same places; and these respondents have no doubt it is in the 
 plan of the said rail road, as devised and specified by the engineers 
 of the complainants, to construct such river walls. 
 
 (34.) These respondents do not know, admit, or believe, that the 
 Complainants had caused any comparative or experimental examin¬ 
 ation of what, in their said bills, they have described as the south¬ 
 ern route for their said Rail Road, that is, of the route in contro¬ 
 versy from the Point of Rocks to Cumberland, or any part of it, to 
 be made; or that there was any recommendation of that route, 
 lounded on any preliminary examination of the same by their engi- , 
 neers, when they determined upon the attempt, in direct and con¬ 
 certed hostility to and derogation of the rights of these Respondents, 
 to adopt and appropriate that route to themselves, and commenced 
 their operations in May, 1828, for the location of their road on that 
 route, and the appropriation of the ground constituting the route 
 and site of the canal as aforesaid : but these Respondents are credi¬ 
 bly and certainly informed and do verily believe, that without any 
 previous examination of that route by their direction or authority, 
 they suddenly despatched their agents, attornies and engineers, some 
 time about, or after the middle of May, 1828, (as to the precise time 
 these Respondents for greater certainty refer to the documents of 
 15 
 
130 
 
 title, whether deeds, agreements, or warrants exhibited with the 
 said hills, of the Complainants) to seize upon the said route by the 
 means set forth in their said hills; and that, without any previous 
 survey or examination whatever of the route, on their part or behalf, 
 they made their pitch, at once, and in the first instance, upon the nar¬ 
 row and difficult passes above described on that route, “and wher¬ 
 ever the character of the ground was such (according to the descrip¬ 
 tion of it by the Complainants in their said bills) as to leave but lit¬ 
 tle choice in the location of the said road, and of course, no choice in 
 that of the canal ; that these measures were pursued with the most 
 extraordinary and precipitant haste; their agents riding about and 
 ranging the country with ceaseless activity, day and night, hunting 
 up the proprietors of the ground on the route, and soliciting from 
 them cessions for the Rail Road ; and with such anxious vigilance 
 and such activity and celerity of movement were all their operations, 
 for the location of the site of the Rail Road, and for taking up and 
 forestalling the proprietary rights in the ground, conducted by the 
 agents of the Complainants, and the officers of the United States 
 serving them as engineers, that the party more resembled a partisan 
 corps, meditating or guarding against surprises, on the flank of an 
 enemy, than persons engaged in the ordinary busines either of con¬ 
 tract or of civil engineering. The Engineers who were employed 
 by the Complainants on that service, were enabled to perform such 
 of the said operations as fell to their share (and they were not con¬ 
 fined as these Respondents are credibly informed and believe, to ope¬ 
 rations within the ordinary sphere of engineers either civil or milita¬ 
 ry, but extended to solicitations and negotiations with the individual 
 proprietors for cessions of their lands,) with so much the more ease 
 and despatch, as most of them had before been attached to the said 
 Board of Internal Improvement, and actually engaged, under the di¬ 
 rection of that Board, in the reconnoissances and surveys of the route 
 of the Chesapeake and Ohio Canal, and in making up the memoirs, 
 topographical descriptions, drawings, maps and profiles of the route 
 and plan of the canal as above stated ; of which, or of the geograph¬ 
 ical and topographical details and information derived from which, 
 they made free and .frequent use (as these Respondents are further 
 credibly informed and verily believe,) in their locations of the said 
 Rail Road upon the said route : and these Respondents have the 
 strongest reason to think and believe, and do verily think and be¬ 
 lieve, that the Complainants were urged to the instant commence¬ 
 ment of these operations, and to the extraordinary haste and precipi¬ 
 tancy with which they pursued them, entirely by the near prospect 
 which they perceived of an organized board of President and Direc¬ 
 tors for the efficient management of the affairs of the said Canal 
 Company, and by a design to forestall and defeat the expected opera¬ 
 tions of that Board to secure, by purchase or condemnation, the 
 ground already designated and selected for the route and site of the 
 canal. 
 
131 
 
 (35.) In further confirmation of what these Respondents have al¬ 
 ready averred, the full and detailed knowledge and notice of the long 
 standing, authentic and notorious election and appropriation of the 
 route and site in controversy for the canal, and of all the steps that 
 had been taken to mark it out and set it apart for that purpose, and 
 how completely it had been incorporated and identified with the whole 
 scheme and plan of the canal; with which knowledge and notice, the 
 Complainants and their agents and engineers commenced and car¬ 
 ried on all their said operations to counteract and defeat these Res¬ 
 pondents in the fulfilment of the great public and beneficial ends and 
 object of their institution ; and in order more clearly to illustrate the 
 inequitable use and application made of such knowledge, which in¬ 
 stead of serving as a protection to rights the existence of which it 
 t communicated, was laid hold of and used to overreach and defeat 
 those rights: and how unscrupulously in other respects, the very 
 instruments and means dedicated to the advancement and execution- 
 of the scheme of the canal, have been converted into the instruments 
 and means of the most deadly attempts against its vital interests, 
 and the interests of the identical parties who had provided those same 
 instruments and means, and lent the aid of them to the Complainants 
 for a very different purpose ; these Respondents say, that of the nine 
 delegates from Baltimore to the said canal convention, in December, 
 eighteen hundred and twenty six, eight of them were prominent and 
 , active members of the said meeting at the city of Baltimore, when 
 
 the project of the said Rail Road was set on foot, and of the commit¬ 
 tees appointed by that meetin; gand six of thoseeight, actually attend¬ 
 ed the said convention, and took part in its deliberations and proceed¬ 
 ings; as will more particularly and at large appear by a reference to 
 the above mentioned proceedings of the said Baltimore meeting and 
 canal convention ; one of them was appointed the President of the 
 said Rail Road Company, at their first election, and has ever since 
 continued so; and was also appointed by the Executive of Maryland, 
 one of the commissioners to open the subscription books for the Cap¬ 
 ital Stock of the said canal company ; and others of the said dele- 
 > gates were, it is believed, appointed directors of the said Rail Road 
 Company ; that the Board of Engineers, officiating for the said Rail 
 Road Company, was always and yet is in part composed, and their 
 corps of field engineers was always and yet is entirely composed of 
 officers belonging to the several corps of engineers and of the army 
 of the United States, and of the civil engineers in the service of the 
 United Slates; all of whom were lent by the government of the Unit¬ 
 ed States to the Complainants, to perform the scientific operations 
 necessary to execute their then supposed plan of a Rail Road; and, 
 it is understood the Complainants enjoy the services of these engi¬ 
 neers at public expense, that any idea of interference between the 
 Rail Road and the canal, was then, and ever after, till the above 
 mentioned intelligence reached and surprised the Secretary of the 
 Treasury in June last, the remotest imaginable from the mind of the 
 Government; and was necessarily known to the Complainants to be 
 
182 
 
 so : that of the various descriptions of engineers so borrowed by the 
 Complainants from the public service, six had been before employed 
 and actively engaged under the abovementioned Board of Internal 
 Improvement, in the identical reconnoissances, surveys, &c. &c. of 
 the route of the Chesapeake and Ohio Canal, in the years 1824, 
 1825, and 1826, communicated by the President to Congress, and 
 published as abovementioned : all which, will more particularly, 
 and at large, appear, by reference to the already cited reports of the 
 said Board of Internal improvement, and to the annexed document, 
 certified from the War Department of the United States, containing 
 the roll of the engineers, detached from the public service for the 
 service of the Complainants, with the orders from the chief engineer 
 of the United States, to the three principals among them : and also 
 the roll of the various engineers, in the service of the United States, 
 •constituting the said Board of Internal Improvement and its assis¬ 
 tants, and the corps of engineers of various classes, actually em¬ 
 ployed under the direction of that Board, in the various reconnois¬ 
 sances, surveys, &c. &c. of the route of the Chesapeake and Ohio 
 Canal. 
 
 (56.) Now, these Respondents, as further advised by their coun¬ 
 sel, and further answering, say, that by the pretensions set up by 
 the complainants, in their said bills, to oust and deprive these Res¬ 
 pondents of the route and site for their canal, here in controversy, 
 and to intrude the said Rail-Road upon the same, by the retrospec¬ 
 tive operation and effect of the Rail-Road charter, or of any other 
 statute of Maryland, or of any other State, and in virtue of the pre¬ 
 tended authority which the complainants assert and exercise under 
 the said State, and their charter from the same, as set up and assert¬ 
 ed in their said bills, there is now here drawn in question the con¬ 
 struction of the Constitution of the United States; and especially 
 of that clause of the same, whereby it is ordained and established, 
 that no State shall pass any ex post facto law or laws impairing the 
 obligation of contracts; and of the several statutes of the United 
 States, to wit: The act of Congress, passed on Jhe 30th of April, 
 1824, appropriating thirty thousand dollars for the purpose of pro¬ 
 curing the necessary surveys, maps, plans, and estimates, upon the 
 subject of roads and canals, &c—the act of Congress, passed on 
 the 3d of March, 1825, confirming an act of the Legislature of 
 Virginia, incorporating the Chesapeake and Ohio Canal Company, 
 and an act of the State of Maryland, confirming the said act of Vir¬ 
 ginia, &c.—the act of Congress, passed on the 23d of May, 1828, 
 to amend and explain the two last-mentioned acts of Maryland and 
 Virginia, Ac. —and the two acts of Congress, passed on the 24th of 
 May, 1828, the one authorizing a subscription to the stock of the 
 Chesapeake and Ohio Canal Company, the other enlarging the pow¬ 
 ers of the several Corporations of the District of Columbia, and 
 for other purposes; under which said clause of the Constitution of 
 the United States, or under such other clause and provisions of the 
 same, as apply to and operate on the case, and under which said 
 
133 
 
 statutes of the United States, or under such of them, and such parts 
 of them, as apply to and operate on the case, these Respondents, in 
 virtue of their aforesaid charter, and of the several statutes and 
 acts of Virginia, Maryland, and the United States, constituting 
 such charter, or altering or amending the same, or anywise relating 
 to the same, and in virtue of the rights and interests thereby, and 
 by the authority of the same, vested in these Respondents, do now 
 here before this court, set up and claim their prior and preferable 
 title, right and privilege, to construct their said canal and its inci¬ 
 dental works and appendages, on the precise route and site designa¬ 
 ted for them as aforesaid, and now in controversy; and to appropri¬ 
 ate, by the prescribed modes of purchase or condemnation, the 
 lands and tenements in controversy, on and near that route and site, 
 and through which the said canal is intended to be conducted, and 
 the necessary materials found on such lands, for the construction of 
 the said canal and its incidental works and appendages; and these Re¬ 
 spondents do now here set up and claim before this court, under the 
 Constitution and statutes of the United States aforesaid, and in vir¬ 
 tue of the rights, interests, and authority, by force of the said sta¬ 
 tutes, and of the other laws aforesaid, vested in these Respondents, 
 an exemption of such their prior and preferable title, right, and 
 privilege aforesaid, from the operation and effect of the charter 
 granted to the complainants as aforesaid, and of the pretended au¬ 
 thority set up, asserted and exercised under the same as aforesaid; 
 and from all diminution and interference, under pretence of such 
 charter or authority. And there is, in like manner, now here drawn 
 in question, the validity of the statute of Maryland, incorporating 
 the Baltimore and Ohio Rail-Road Company, and of the pretended 
 authority so set up, asserted and exercised by the complainants, 
 under that statute as aforesaid, in so far as that statute, or that au¬ 
 thority has been, is, or may be held or construed, setup, asserted, or 
 exercised, to operate any revocation, diminution, alteration or inter¬ 
 ference of, or with the prior and preferable title, right, and privilege, 
 so set up and claimed by these Respondents as aforesaid, or, in any 
 manner, to set up and assert any adversary title, right, or privilege, 
 or the pretence of such in the complainants; the said statute, and 
 the said authority, so set up, asserted and exercised under the same, 
 by the complainants as aforesaid, being so far, and to every such in¬ 
 tent and purpose as aforesaid, repugnant to the Constitution of the 
 United States. Of all which matters, these Respondents crave all 
 the benefit and advantage in this answer, that they might, or could 
 have had from averment, or from any form or mode of equity plead¬ 
 ing whatsoever. 
 
 (37.) These Respondents deny all fraud and combination where¬ 
 with, &c. without this, that they have herein left unanswered, any 
 matter or thing in the said bills, or either of them contained, which 
 they ought to have answered, &c. Wherefore, they pray to be hence 
 dismissed with their costs in this behalf, most wrongfully sustain¬ 
 ed, &c. 
 
134 
 
 In verification of the foregoing answer, and of all and singular 
 the averments, matters and things therein contained, and on 
 behalf of the Respondents averred, and of the annexed sche¬ 
 dule, as part and parcel of the foregoing answer. These Res- 
 [seal.] pondents have caused the proper hand of their President to 
 be hereunto subscribed, and their corporate seal to be hereto 
 affixed, this eighth day of May, in the year of our Lord, one 
 thousand eight hundred and twenty-nine. 
 
 C.F. MERCER, 
 
 President of the Chesapeake and Ohio Canal Company. 
 
 W. JONES, 
 
 For Defendants and Respondents . 
 
 SCHEDULE REFERRED TO IN THE FOREGOING 
 ANSWER. 
 
 1. A pamphlet, printed at Washington in 1828, entitled ^Chesa¬ 
 peake and Ohio Canal Company,” containing the several laws and res¬ 
 olutions of Virginia, Maryland, Pennsylvania and the United States, 
 relative to the Potomac Company, and the Chesapeake and Ohio Ca¬ 
 nal Company, the proceedings of the companies, &c. 
 
 2. Proceedings of the Board of Public Works of Virginia, 1819— 
 20, with the documents and papers accompanying the same, as prin¬ 
 ted by authority of the General Assembly of Virginia. 
 
 3. Message of the Governor of Maryland to the General Assembly, 
 communicating the report of the Commissioners appointed by the 
 conjoint authority of Virginia and Maryland, to survey the river Po¬ 
 tomac, &c. with the documents and papers accompanying the same, 
 as printed at Annapolis by the authority of the General Assembly, 
 or House of Delegates, in 1822. 
 
 4. Letters from the Governor and Council of Maryland, to the 
 President of the Senate of the United States, communicating the 
 same report, &c. as printed by order of the Senate, January 27, 1823. 
 
 5. Report of the committee of the House of Delegates of Mary¬ 
 land, December Session, 1821, on the executive communication rela¬ 
 ting to the appointment of commissioners with respect to the Poto¬ 
 mac river, &c. &c., with the documents and papers accompanying 
 the same, as printed at Annapolis, by authority of the House of Del¬ 
 egates. 
 
 6. A bill reported in the House of Delegates of Maryland, January 
 28, 1823, entitled “An Act to establish the Potomac Canal Compa¬ 
 ny as printed by order of that House. 
 
 7. A law of Virginia, passed February 22, 1823, entitled “An Act 
 incorporating the Potomac Canal Company .” 
 
 8. Report of the Committee of the House of Representatives of the 
 United States on Roads and Canals, made January 2, 1822, accom- 
 
135 
 
 paniedby a report of the Secretary of the Treasury, pursuant to a re¬ 
 solution of the Senate of March 2, 1807, with the other documents and 
 papers accompanying that report, as printed by order of the House. 
 Vide printed reports of 1st sess. 17th Cong. vol. 1. [Report No. 8.] 
 
 9. Resolutions of said House of Representatives, moved by Mr. 
 Stewart, March 5, 1822, directing the committee on Roads and Canals 
 to inquire into the expediency of appointing commissioners to exam¬ 
 ine and report the practicability, &c. of connecting by a canal the 
 Potomac and the Youghiogany rivers, uniting the eastern with the 
 western waters. Yide House Journal, 1st sess. 17 Cong, page 317, as 
 printed by order of the House. 
 
 10. Report of the committee on roads and canals of the House of Rep¬ 
 resentatives of the United States, April 26, 1822, with the documents 
 and papers accompanying the same, as printed by order of the House. 
 Yide printed reports, &c. 1st sess. 17 Cong. [Report No. 98.] 
 
 11. Report of the committee on the District of Columbia, House 
 of Representatives, United States, on sundry memorials from the in¬ 
 habitants of Pennsylvania, Maryland and Virginia, praying the aid 
 of the General Government towards the improvement of the naviga¬ 
 tion of the river Potomac, May 3, 1822, with the documents and papers 
 accompanying the same, as printed by order of the House. Yide prin¬ 
 ted reports, 1st ses. 17 Cong. [Report No. 111.] For this report 
 (without the accompanying documents) vid. appendix to the report re¬ 
 ferred to in No. 17 of this schedule. 
 
 12. Proceedings of the Chesapeake and Ohio Canal Convention, 
 at its first and second sessions, on the 6th of November, 1823, and 6th 
 of December, 1826, with the documents aud papers accompanying 
 the same, printed at Washington City, 1827, by order of the Con¬ 
 vention. 
 
 13. Message of the President of the United States to Congress, 
 14th Febuary, 1825, transmitting the report of the Board of Inter-, 
 nal Improvement, Ac. with the documents and papers accompanying 
 that message, as printed by order of the House of Representatives, 
 among the public documents of that House, at the 2d sess. of the 18th 
 Congress. [Document No. 83.] And also as printed by order of 
 the Senate of the United States, among the Senate’s public documents 
 of the session. [Document No. 32.] 
 
 14. Map of the country between Washington City and Pittsburg, 
 shewing the proposed routes of the Chesapeake and Ohio Canal, 
 compiled by E. H. Courtney, Lieutenant of corps of Engineers, ac¬ 
 companying the abovementioned report of the Board of Internal Im¬ 
 provement, and tested as No, 16, but not printed with the other doc¬ 
 uments accompanying the President’s said message. 
 
 15. Memorial of the Central Committee of the Chesapeake and 
 Ohio Canal Convention and of the Commissioners appointed by the 
 States of Virginia and Maryland, and the United States, Ac. to Con¬ 
 gress, as printed by order of the House of Representatives of the 
 United States, April 3, 1826, among the House documents, 1st sess. 
 
 19th Cong. [Document No. 151.] 
 
136 
 
 16. Report of the committee on Roads and Canals of the House 
 of Representatives of the United States, May 16, 1826, on the re¬ 
 solution of the House, instructing that committee to inquire into the 
 expediency of surveying a route for the extension of the Chesapeake 
 and Ohio Canal, from Pittsburg to Lake Erie, &c. &c* with the doc¬ 
 uments and papers accompanying the same, as printed among the 
 reports of the House, 1st sess. 19th Cong. [Report No 216.] 
 
 17. Report of the committee on Roads and Canals of the*House 
 of Representatives of the United States, May 22, 1826, on a joint 
 memorial of the Central Committee, and the Commissioners appoint¬ 
 ed by Virginia, and Maryland, and the United States, &c. &c. as 
 printed among the documents of the House, of the first session nine¬ 
 teenth Congress. [Report No. 228.] 
 
 18. Letter from the Secretary of War, dated April 11, 1826, to 
 the Speaker of the House of Representatives of the United States, in 
 compliance with a resolution of the House, transmitting a report of 
 the Engineer employed in exploring the country between Bedford and 
 Cumberland: with the document and papers accompanying the said 
 letter, &c. &c. as printed by order of the House among its public docu¬ 
 ments. 1st sess. 19th Cong. [Doc. No. 158.] 
 
 19. Letter from the Secretary of War to the Speaker of the House 
 of Representatives of United States, April 29th 1826, in compliance 
 with a resolution of the House, transmitting a report of the engineers 
 employed in exploring the country, &c. between the Deep Creek 
 and Castleman’s summits, Ac. with the documents a,nd papers accom¬ 
 panying that letter, as printed by order of the House among its pub¬ 
 lic documents, 1st sess. 19th Cong. [Doc. No. 169 ] 
 
 20. Message from the President of the United States to Congress, 
 Dec. 7th, 1826, transmitting the report of the Board of internal 
 Improvement, &c. concerning the proposed Chesapeake and Ohio Ca¬ 
 nal, with the documents and papers accompanying that message, as 
 printed by order of the House of Representatives United States, 
 among the executive documents, 2d sess. 19th Cong, [Doc. No. 10.] 
 and also printed by order of the Senate of the United States, among 
 the Senate’s public documents, same session. [Doc. No.—.] 
 
 21. The following of the documents accompanying and mentioned 
 in the last abovementioned report, but not printed with the other pa¬ 
 pers and documents transmitted with the President’s last above men¬ 
 tioned message : to wit, No. 1. of the memoirs mentioned in General 
 Bernard’s letter to Gen. Macomb, p. 9, being Lieut Col. Abbert’s 
 report, &c. 
 
 The maps and profiles of the first seven subdivisions of the Chesa¬ 
 peake and Ohio Canal, referred to and described in Gen. Bernard’s 
 said letter, p. 9, and in the report of the Board describing the east¬ 
 ern section of the Canal, and its first seven subdivisions, p. 41 to 48, 
 and numbered from sheet A 1, to A 14, inclusive. Also the map re¬ 
 ferred to and described in the same letter and report, as the Board 
 of Internal Improvements, map No. 1, sheet A, No. 15. 
 
137 
 
 22. Report of the Committee of the House of Representatives of 
 the United States on Roads and Canals, January 30, 1827, to whom 
 were referred the memorials and proceedings of the Chesapeake and 
 Ohio Canal Convention, &c. with the documents and papers accom¬ 
 panying that report, as printed by'order of the House among its re¬ 
 ports at the 2d sess. 19th Cong. [Report No. 90.] 
 
 *23. Letter from the Secretary of War to the Speaker of the House 
 of Representatives, U. S. January 11, 1828, pursuant to a resolu¬ 
 tion of the House, transmitting Doctor William Howard’s report and 
 plans of the survey of a route for a Canal from Baltimore to the Po¬ 
 tomac, &c. with the documents and papers accompanying that letter, 
 as published by order of 1 he House, January 30, 1828, among its pub¬ 
 lic documents of the 1st scss. 20th Cong. [Doc. 58.] 
 
 24. Memorial of the Central Committee of the Chesapeake and 
 Ohio Canal Convention to Congress, with the documents and papers 
 accompanying the same, read and referred (January 28, 1828) to the 
 committee of the whole House of Representatives, U.8. &c. as printed 
 by order of the House among its documents, 1st sess. 20th Cons. 
 [Doc. No. 101.] 
 
 25. Letter from the Secretary of War to the Speaker of the House 
 of Representatives, U. S. (March 10, 1828) in obedience to a reso¬ 
 lution of the House, transmitting the report of the civil engineers, 
 James Geddes and Nathan S. Roberts, of their survey and estimates 
 of the eastern section of the Chesapeake and Ohio Canal, with the 
 documents and papers accompanying that letter, as printed by order 
 of the House among its public documents, 1st sess. 20th Con. [Doc. 
 No. 192.] 
 
 26. The maps and profiles (not printed with the other documents 
 accompanying the last mentioned letter, but accompanying the report 
 of the said civil engineers and therein referred to) of the first seven 
 subdivisions of the route of the eastern section to which their said 
 report applies. 
 
 27. Letter from the Secretary of War to the Speaker of the House 
 of Representatives of the United States (April 18, 1828) pursuant 
 to a call from the House, transmitting a report, &c. by the said civil 
 engineers, James Geddes and Nathan S. Roberts, on a line of canal 
 from the ' three Sisters,” above Georgetown to Alexandria, with the 
 document's and papers accompanying said letter, as printed by order 
 of the House among its public documents, 1st sess. 20th Cong. [Doc. 
 No. 254.] 
 
 28. Report of the committee on Roads and Canals of the House 
 of Representatives, U. S. (January 2, 1828) to whom was referred 
 the memorial of the Central Committee of the Chesapeake and Ohio 
 Canal Convention, and of the commissioners appointed by Virginia, 
 &c. with the documents and papers accompanying the same, as prin¬ 
 ted by order of the House of Representatives among its reports, 1st 
 sess. 20th Cong. [Report No. 47.] 
 
 29. Supplementary report of the same committee (Febuary 11, 
 1828) with the documents and papers accompanying the same, as prin- 
 
 16 
 
138 
 
 teil by order of the House, among its reports, 1st sess. 20th Cong. 
 [Report No. 141.] 
 
 30. Report of the same committee (January 30, 1828) on the memo¬ 
 rials of the Corporations of Washington, Georgetown and Alexan¬ 
 dria, &c. &c. with the documents and papers, as printed by order 
 of the House, among its reports, lstsess. 20th Cong. [Report No. 
 112 .] 
 
 31. Letter from the Governor of Maryland to the President of the 
 Senate L T . S. (Feburary 1 , 1825) transmitting, pursuant to a resolution 
 of the Legislature of Maryland, a copy of tile law of that State, con¬ 
 firming the act of Virginia, incorporating the Chesapeake and Ohio 
 Canal Company, &c. &c. as printed by order of Senate of the United 
 States, among its public documents, 2d sess. 18th Cong. [Doc. No. 
 24.] 
 
 32. Summary of the subscriptions to the Capital Stock of the 
 Chesapeake and Ohio Canal Company, shewing its aggregate amounts 
 on certain days. 
 
 33. The several advertisements of the Commissioners appointed 
 by Virginia, &c. advertising the opening of the subscription books for 
 the Capital Stock of the Chesapeake and Ohio Canal Company, and 
 their calls and postponement of the general meeting of the stock¬ 
 holders. 
 
 34. Attested copy of the Bill of Injunction in Washington County 
 Court, 10th June, 1828, by these respondents and the Potomac Com¬ 
 pany, against the now complainants. 
 
 35. Maps (No. 1, 2, 3) and profiles accompanying the same of the 
 survey, location, and plan, of the Chesapeake and Ohio Canal from 
 the Point of Rocks, or a short distance below,to Williamsport; pre¬ 
 pared by the engineers of these respondents (since the surveys, maps, 
 &c. of the United States 9 engineers) for the purpose of putting that 
 part of the route under contract for execution. 
 
 36. The printed proceedings of a number of citizens of Baltimore, 
 assembled at that city on the 12th and 19th February, 1827, to take 
 into consideration the best means of restoring to Baltimore, &c. prin¬ 
 ted by the authority of the meeting and its committee. 
 
 37. Documents certified by the Secretary of War, exhibiting the 
 orders or instructions from the Chief Engineer of the United States, 
 to three of the principal engineers detached from the service of the 
 United States for the service of the complainants, and of those em- 
 plo>ed under the Board of Internal Improvement, in the reconnois- 
 •ances, surveys, &c. of the route of the Chesapeake and Ohio Canal. 
 
139 
 
 THE BALTIMORE AND OHIO RAIL ROAD COMPANY, 
 
 vs. 
 
 THE CHESAPEAKE AND OHIO CANAL COMPANY. 
 
 In Chancery, September 24th, 1829 . 
 
 The motion for the dissolution of the injunction heretofore granted 
 in this case, standing ready for hearing, the matter was opened, and 
 the argument commenced by the solicitors of the parties on the 21st 
 July last, and continued until the 6th of August following, when per¬ 
 mission was given to add, by way of notes, some remarks upon such 
 new matters as had not been presented in the opening on the part of 
 the plaintiffs. Whereupon a kind of supplemental argument in writ¬ 
 ing, was prepared on each side, which, with the pleadings and their 
 exhibits, amounted on the part of the defendants to a very large 
 mass, were submitted on the 19th of August last; since which time, 
 I have read the proceedings, and maturely considered the whole case. 
 
 It appears that the plaintiffs by their act of incorporation, were au¬ 
 thorized, for the purpose of making the contemplated road, to enter 
 upon, use and excavate, any land which might be wanted for the site 
 of their road, or its necessary works, and to enable them to acquire 
 a complete legal title to such land, upon making compensation for it, 
 they were authorized to agree with the owner for the’purchase of it, 
 or if he were unwilling or incompetent to sell, or out of the county, 
 in which the property wanted might be, they were authorised to ob¬ 
 tain a warrant for having it valued and condemned to them, in the mode 
 prescribed. Under these powers they proceeded to enter upon the 
 lands along the route they have described, as the site of their road, 
 thus located, and to procure a complete legal title to those lands, they 
 agreed with the owners of some parts for a legal conveyance, and 
 had sued out warrants for the purpose of obtaining a legal title to 
 other parts thereof in that way. That neither the Potomac Compa¬ 
 ny, (a body politic in existence at the time the plaintiffs filed their 
 bill, but who have since been dissolved,) nor the present defendants 
 had ever, in any manner, acquired any title to the lands over which 
 the plaintiffs had located their roads, and that these defendants had, 
 notwithstanding, attempted, and were about to obtain a legal 
 title in the mode authorized by their act of incorporation, for the 
 identical same lands so entered upon, agreed for, or about to be 
 condemned by the plaintiffs: by which means they would be enabled 
 to interfere very injuriously with the rights of the plaintiffs, and in¬ 
 volve them in great difficulties. To prevent which, the plaintiffs 
 prayed an injunction, which was accordingly granted. 
 
 The equity arising out of these facts may be expressed to this ef¬ 
 fect : where two or more are allowed by law, to purchase and acquire 
 
140 
 
 a title to lands upon certain conditions, and according to a prescribed 
 mode of proceeding, he who does the first requisite act for that pur¬ 
 pose, shall not be hindered in his further progress, because the law 
 has thus held out a pledge, that to no one else shall be permitted after 
 that, so to interpose any obstacles, or to arm himself with a formal 
 legal title, by means of which, he may be, at least enabled to litigateand 
 embarrass, if not to overthrow, the right of him whose title had been 
 thus first begun. To refuse an injunction in such a case, against an 
 impertinent and wrongful intruder upon an inchoate title, which 
 at common law is altogether defenceless, would be to stand by and 
 openly tolerate a race for the means of litigation and strife. But the 
 principles upon which this injunction rests, must be familiar to every 
 one at all acquainted with the origin of land titles in Maryland. A 
 title to land may be obtained from the State, through the Land Office, 
 among other modes, either under a common or a special warrant; 
 but when the legal title has been perfected under either, it relates 
 back to the date of the special warrant, or the date of the certificate 
 of survey, by which the particular parcel of land was designated, as 
 that first act distinctly manifesting an intention to purchase that land 
 so specified. After the taking of which first step towards a purchase, 
 equity forbids any one else from interfering. And if another person 
 does attempt to intrude, he may be restrained in a summary way, by 
 a caveat in the Land Office. The object of the caveat 9 as of 
 the injunction in this instance, is to prohibit the defendant from ob¬ 
 taining that, to which he can have no just claim ; and to prevent him 
 from providing himself with the means of mischievous controversy. 
 Upon these principles f granted the injunction in this case, and I still 
 feel satisfied that it was correctly granted. 
 
 The defendants by their answer have not denied, nor even question¬ 
 ed any one of those facts uponjwhich the plantiffs’ injunction reposes. 
 Those facts are all of them admitted, or not being denied, are now to 
 be taken as true. But the defendants, taking an extensive range, 
 have gathered together and condensed in their answer, a great mass 
 of facts and circumstances, showing as they say, the notoriety of 
 the public, and early dedication of the ground in question to the pur¬ 
 poses of a canal. And they allege, that there are numerous passes 
 between the tide and Cumberland, where the Potomac breaks through 
 the numerous ridges, mountains and rocky precipices, where it is 
 hemmed in by rocks and high banks with a very narrow space be¬ 
 tween, which narrow passes being wholly taken up by the rail road, 
 leaves no room for the canal to be constructed on the same side of 
 the river, but at an enormous expense, and which, in fact, produces 
 such difficulties as to endanger their whole project. These allega¬ 
 tions and their whole case, as they state, are deducible from a multi¬ 
 tude of facts, proceedings, and papers, which they have exhibited as 
 a part of their answer, and all of which they aver to be public and 
 authentic documents. In this manner they introduce a case 
 which as they allege, is so sustained, that the Court might take judi¬ 
 cial notice of the facts of which it is composed ; and those facts be¬ 
 ing so noticed, they give rise to a countervailing equity, which avoids, 
 
141 
 
 displaces, and altogether overrules every equity upon which the 
 plaintiffs, can rely ; that the Court may with as much propriety be 
 called on now to dissolve the injunction in their case so made out, as 
 if they had shown a public act of the General Assembly, the opera¬ 
 tion of which displaced the equity, or was incompatible with the 
 further continuance of this injunction. There are some distinctions 
 and principles which it will be useful to recall to our recollection, and 
 constantly to bear in mind, in order to a more perfect understanding 
 of this case. When speaking in a Court of common law, or of its 
 proceedings and powers, a distinction is always made between fact 
 and law; and much is said in the books which treat of their pro¬ 
 ceedings, of this distinction : and it is shown that, in some instances, 
 ) fact and law are inseparably blended. The difficulties with which 
 those courts have to contend, as to where and how the line should be 
 drawn between fact and law , arises for the most part from the pecu- 
 liarity of their constitution. They are always constituted of two 
 distinct branches, the Judge and the Jury. To the Judge alone, 
 belongs the right to decide on the law, and the Jury is only charged 
 with the duty of finding the fact. All legal rules involve both law 
 and fact, because the rule itself is either declared to be only applica¬ 
 ble to a certain state of facts, or it is one which is assumed as always 
 arising out of some particular facts. Every law is then nothing 
 more than the incidental consequence annexed to the particular combi¬ 
 nation of facts— Ex facto oritur jus. I Stark. Ev : 406. 3 ath. 36. 
 In speaking of the proceedings in a Court of Chancery, the same 
 distinction is made and exists precisely in the same way and to the 
 same extent in all respects. The phrase is changed and nothing 
 more. We do not here speak of the distinction between fact and 
 law , but of that between fact and eqiiity y excepting only so 
 far as a reference is made to the different constitution of the 
 tribunals; the sense and meaning of the two expressions are 
 exactly the same in all intents and purposes. And if the Chan¬ 
 cellor were to have associated with him a jury for the purpose 
 of finding the facts, leaving him only to decide upon the equity, 
 the same kind of difficulties would arise, and as often in this Court, 
 as to the proper distinction between fact and equity, as between fact 
 and law in a court of common law. In the case of Salmon vs; 
 Clagett, I endeavored to explain the principles by which this Court 
 had been, and would continue to be governed in relation to motions 
 for dissolving injunctions. I stated that there was, or, in many cases 
 might be, a very clear distinction drawn between th c facts composing 
 the case, on which the injunction rested, and those making up the 
 whole case of the bill on which the relief was prayed, and the case 
 presented by the answer, including as well the facts set forth in avoid¬ 
 ance of, as those which are responsive to the bill. In a word, that 
 as the equity arising out of each combination of facts essentially 
 varied, it became necessary to determine, what was that combina¬ 
 tion of facts to which the Court must confine itself on a motion to 
 dissolve the injunction : and I then declared, that it must confine 
 
142 
 
 itself exclusively to the case, or combination of facts set forth in the 
 bill out of which the equity of the injunction arose, and to the an¬ 
 swer of the defendant to these facts. Througli the whole of the 
 explanation of this subject in that case, I took it for granted, that 
 the distinction between fad and equity was pef/ectly understood and 
 constantly attended to, because it was a common, substantial and 
 elementary one. I was the more particular in the explanation of the 
 peculiar and often circumscribed nature of the case on which the 
 injunction rested, because I there showed, the loose and general ex¬ 
 pressions of the English books upon the subject, however well 
 adapted to the course of proceedings in that country, by no means 
 conveyed a correct notion of the principles by which this Court is 
 governed, and because I perceived that although the New York adju¬ 
 dications, which are highly respected here, had in some cases laid 
 down a rule as it prevails here, and had declared it to oe according 
 to the reason of the thing, 1 Hopk. 276. 4 John. C. Rep, 323, and al¬ 
 so because the no less highly reputable decisions of Virginia had 
 sanctioned a course of proceedings in that State, which was wholly 
 unlike ours, and as it seemed to me unsuitable to the constitution of 
 tliis Court, 1 Hen. and Mun. 
 
 In this case much has been 3aid about the injunction granted by 
 the County Court of Washington. That case, as I have repeatedly 
 declared, has no sort of necessary connexion with this. The wrong 
 complained of here, is the fact of the defendants’ endeavoring to pur¬ 
 chase certain land which the plaintiffs were about to purchase, and 
 to which they had previously begun to acquire a legal title. Now I 
 have not perceived from the pleadings in the case, or been able to 
 gather from the arguments, that this matter of controversy is in any 
 way involved in that suit, or that any judgment 1 can pronounce in 
 this case, can in any manner bring this Court in collision with the 
 Washington County Court. There was, in truth, no necessity to 
 have made the slightest allusion to the suit in that County Court. 
 But since that suit has been fully and specially referred to in this 
 bill, I will here take occasion to remark, that this Court has been 
 thus made to afford ah example of the distinction. I endeavored to 
 illustrate in the case of Salmon vs. Clagett, between the case on 
 which the injunction rests, and the whole case of the bill upon which 
 it prays relief. Here, the plaintiffs state themselves to be purcha¬ 
 sers who had taken the first requisite steps towards completing their 
 purchase, and were going on to do so. When these defendants 
 stepped in, and were attempting to take the bargain from them, or to 
 put themselves in a condition to contest their complete title, when it 
 should be obtained : so far the facts were necessary to this injunction. 
 The plaintiffs then introduced all the circumstances of the County 
 Court, injunction and suit; now those facts could be of no service to 
 them as a basis for the injunction asked for here, but at the final hear¬ 
 ing they might have been of use, as a reply to a charge of laches in not 
 going on with due diligence to perfect the legal title they had begun, 
 had it been alleged in the answer that they w'ere unworthy of belief. 
 
443 
 
 because of any such negligence, since that County Court injunction 
 would have sufliciently accounted for the delay, and prevented its 
 being thence inferred that the plaintiffs had tacitly abandoned their 
 incipient title. For that purpose, and as showing why the plaintiffs 
 should be restored to those advantages which they ought to have 
 been allowed to derive from their first step towards a complete title, 
 when that injunction, if at all, shall have been withdrawn so as to 
 allow them to proceed, are the only modes in which any thing that is 
 said about the County Court suit can have any bearing upon this 
 case. And, in this way, it furnishes an example in this suit of the 
 difference between the case of the injunction and that case : every 
 part of which might have been necessary to give a sufficient founda¬ 
 tion for the relief prayed. In the consideration of a motion to dis¬ 
 solve an injunction on the coming of the answer, it is essentially 
 necessary that these distinctions should be constantly borne in mind, 
 and that we should be every way careful not to confound the equity and 
 merits of the case with that combination of facts of which the case 
 is composed ; and which gives rise to the equity upon which the 
 injunction reposes. These distinctions are our chief or only guides 
 through the mazes of the numerous and various allegations, aver¬ 
 ments, and arguments, which each one of the parties may introduce 
 into the pleadings, by which he exhibits his case to the Court. In a 
 Court of common law, as regards the right cf judge and jury, there 
 may be often much difficulty in distinguishing between fact and law; 
 but here and in cases of this kind, the distinction between fact and 
 equity being deduced from the pleadings is more easily drawn. The 
 allegations of the pleadings, so far as regards facts , are offered as by 
 a witness giving testimony. The averments of fact in an injunction 
 bill are sworn to as by a witness to cause the Court to believe in their 
 truth ; and so believing them to perceive the incident equity arising 
 therefrom which will authorize the granting an injunction. And a 
 defendant is bound, and may be forced to make answer on oath, to all 
 the facts so stated in the bill: he responds in many respects as a wit¬ 
 ness, and his answer is evidence of facts, not of equity. Consequent¬ 
 ly, if the pleadings in Chancery are taken as they certainly may 
 be to this purpose, as the declaration of witnesses testifying to facts, 
 the distinction between what must be regarded as fact and not as 
 equity in a bill or answer, will be seen in a clear and striking point 
 of view. A party speaking only as witness canno'tbe said to alter, 
 or cause belief in any principles of equity by making oath to their 
 existence, since they are annexed to and made incidents beyond his 
 control, of certain combinations of facts, and the court is bound in 
 the most emphatic sense to take notice of all such principles without 
 proof. Therefore, on a motion to dissolve an injunction, the best test 
 of what are properly averments of facts in a bill or answer, is whe¬ 
 ther they are such matters as a witness might be called to prove, or 
 the truth of which mustj be established by evidence, to enable the 
 Court to act; if they are not, then they are cither sheer principles of 
 equity, or some of those public and established facts, such as the 
 
144 
 
 constitutionally appointed day of the meeting of the General As¬ 
 sembly, or the like, of which the court is bound to take judicial no¬ 
 tice, without any proof whatever. 
 
 The defendants, in support of the position that their case is sub¬ 
 stantially made up only of such matters of which the Court is bound to 
 take notice, relied upon 1 Stark. Ev. 166. But the subject there 
 treated of, can have no manner of relation to this case as it now 
 stands upon this motion. Here the position taken that no proof of 
 any kind can be required ; there the inquiry is concerning the public 
 written instrument of evidence, the forms with which they must be 
 clothed to entitle them to be received as such, and of the nature of 
 the matter of which they may be deemed sufficient proof. No one 
 will question the soundness of the general principle there laid down. 
 It amounts to no more than this : that the acts of the whole Govern¬ 
 ment, or any one of its departments, may be shewn by giving in evi¬ 
 dence those papers and documents which are the usual and establish¬ 
 ed forms by which it exercises or manifests the powers belonging to 
 it. In England the King alone declares war; and, therefore, a royal 
 proclamation to that effect is there held to be sufficient evidence of a 
 state of war : in this country Congress alone can declare war; and 
 hence, here, no instrument short of an act of Congress can be deem¬ 
 ed sufficient evidence of the United States having placed themselves 
 in a state of war. This principle of evidence may, perhaps, be con¬ 
 sidered as alike applicable to all countries. But the shewing that 
 certain papers and proceedings may be uset^ as evidence, for any 
 purpose, by no means sustains the position that the Court is bound to 
 take notice of them as public and authentic documents, 2 Camp. 44. 
 The general princple, as illustrated by the authority relied on, applies 
 only to the inquiry what is proper and sufficient evidence of certain 
 facts. The question here is, not as to the nature or the instruments 
 of evidence, but whether the case or the facts are such of which no 
 proof whatever is required, because of their belonging to that class 
 of matters of which the Court is bound to take notice. The position 
 taken by the defendants repudiates all proof. They aver that their 
 case is made up of that which gives them a full dispensation from the 
 necessity to produce proof of any description; and, therefore, they 
 invite the Court so to look upon it, to sanction the proof of every 
 part of it, and to act accordingly. 
 
 I take it to be clear, that, as to all those facts and circumstances of 
 which the Court is bound to take notice on a motion to dissolve an 
 injunction, the parties stand before it in the same situation as that 
 in which a dissolution is asked for, on the ground that the facts set 
 forth by the bill gives rise to no equity upon which an injunction 
 ought to be granted. It is a W'ell established principle in equity as 
 well as at law, that a plaintiff can only obtain relief upon the strength 
 of his own claim, and not upon the weakness of that of his ad¬ 
 versary ; and, therefore, if it should appear that the facts as stated 
 in the bill, looking to it alone, gave rise to no equity, it is very cer¬ 
 tain that the injunction would be dissolved, whether the defendants 
 
145 
 
 had answered or not, or however imperfectly he might have answer- 
 ed. Let it then be supposed that an injunction had been granted to 
 restrain the making of a canal, or the doing of any other act, under 
 an impression that the defendant had been clothed with no authority 
 to do the act complained of, and it should be afterwards shewn to the 
 Chancellor that a public act cf the General Assembly, of which he 
 was bound to take notice, had fully authorized that very act. It is 
 certain that he would, in such case, immediately dissolve the injunction 
 even without an answer, or without regard to the imperfections of the 
 answer; consequently, if the exhibits of these defendants be in truth 
 as they have alleged, such public and authentic documents as the 
 Court is bound to notice, they might, by merely reading them to, or 
 reminding the Court of them, have obtained all the benefit from them 
 which they could have had in any other way. If taken altogether, 
 or separately, they give rise to such an equity as is incompatible with 
 that on which the injunction rests; it must be dissolved. This might 
 be done by the defendants without making any answer, but a defend¬ 
 ant may in general insist on any matter, by way of answer, which he 
 may take advantage of by plea or demurrer. Here the answer 
 relies expressly upon that countervailing equity arising out of 
 the combination of facts which it has set forth in avoidance of the plain¬ 
 tiffs’ case, and, therefore, if those facts are such as the Court is bound 
 to notice, their being couched in the form of an answer, cannot re¬ 
 lease the Court from that obligation, nor can they be thus rendered 
 in any manner less acceptable to the Court, or less available to the 
 plaintiffs, than if they had been shewn in any other way. 
 
 It is laid down as clear law that no evidence can be required to 
 prove the existence of a fact which must have happened according 
 to the constant and invariable course of nature, or to prove any ge¬ 
 neral law or other publifc matter of which the Courts are bound to 
 take judicial notice. An act of Assembly relating to a public high¬ 
 way, is a public act of which they will take notice, but of private 
 acts they take no notice, 1 Stark. Ev. 163, 400. They take notice of 
 the order and course of proceedings in each of the two Houses of the 
 General Assembly, 1 Saund. 131, but not of their journals or votes 
 and proceedings, l Ld. Raym. 15, nor are those journals when prov¬ 
 ed evidence of any facts stated in the resolutions or reports of com¬ 
 mittees, which are not a part of the proceedings of the House, 1 Stark. 
 Ev. 167. The Courts of Justice of the several States must take 
 notice of all public acts of Congress, even including (as may be 
 admitted in this case) those which relate exclusively to the municipal 
 affairs of the District of Columbia, but they arc not bound to notice 
 any foreign law, or law of any other State of the Union. The acts 
 of the other States of the Union, to be admitted even as evidence, 
 must be authenticated according to the act of Congress. The 
 Courts of Justice arc also bound to take notice of the civil geography 
 of the State, as of the counties, districts, and cities, established by 
 the State Government, and also of the districts and ports, which are 
 the divisions made of it by the Federal Government: but they do not 
 17 
 
146 
 
 notice the local situation of places within particular counties, or the 
 distance of counties from each other, 4 Bar. and Aid. 243. And, a! 
 though they will notice to extent of ports, 1 Stra. 469, yet the strait 
 ening of a port by building too far into the water, where ships and 
 vessels might have formerly ridden, is a matter of which they cannot 
 take notice, but it is a question of fact, to be determined by a Jury 
 upon evidence, Haig. Tr. 85. As regards the subject now under con¬ 
 sideration, the obligation of the Courts of Justice to take notice of 
 various matters and things, extends thus far and no farther. It only 
 remains to inquire, therefore, whether those matters which the de¬ 
 fendants have condensed into the form of an answer, and proffered to 
 the consideration of the Court, are some of those of which it is bound 
 to take judicial notice. The line of road to be formed by the 
 plaintiffs, and the canal to be constructed by the defendants, are both 
 of them declared to be public highways; and,therefore, the several 
 acts by which they have been incorporated, are public law3 of which 
 the Court is bound to take notice. The acts of Congress, and of the 
 other States of the Union, in relation to those two public highways, 
 may also be noticed on the ground that they have been called for, re¬ 
 cognized, and adopted, by public laws of this State, which have ac¬ 
 tually taken effect. But no private act of this State, nor any legisla¬ 
 tive enactment of any other State, which has not been thus expressly 
 invoked, and in a manner introduced into the body of our public sta¬ 
 tute law, can be noticed by this Court; and, therefore, none 
 of the acts of the Legislature of Virginia, or any other State, 
 passed prior to, or which have not been adopted by those acts of 
 ours, of 1826, ch. 123, and 1824, ch. 7 9, by which the plaintiffs 
 and the defendants have been incorporated, can be now noticed. 
 It is also certain, that all the Journals, Reports of Committees, and 
 every thing else, found among the proceedings of any legislative body, 
 must, upon the present occasion, be laid aside as matters which the 
 court cannot now notice. As to the multitude of private papers, refer¬ 
 red to in the answer, such as proceedings of sundry meetings of re¬ 
 spectable people,* who gave themselves the name of conventions, pri¬ 
 vate letters, and the like, as it has not been very seriously contended, 
 that they should be noticed, and considered as public and authentic 
 documents, in any respect, so as to affect the rights of property any 
 where, or to any extent, I may, without scruple or hesitation, throw 
 aside the whole mass of papers of that description, at least for the 
 present, as utterly unworthy of being judicially noticed, without 
 proof, for any purpose whatever.—Bui the defendants in their an¬ 
 swer say “ that at the Point of Rocks where the Potomac intersects 
 the ridge of the Catoctin Mountain, and where the pretended route 
 of the said Rail-Road is described by the compainants, in their said 
 bills to strike the Potomac river; there is one of those narrow pas¬ 
 ses in the actual route and site of the canal, as officially and definitely 
 selected, surveyed, and laid down as aforesaid, which presents no 
 choice of ground for the canal, but w here for a considerable distance 
 up the river along the foot of the mountain and its spurs, the canal 
 
 • 
 
147 
 
 is confined by the nature of the ground within certain primeval and 
 immoveable barriers, as is more particularly shown and illustrated 
 by the topographical descriptions, maps and profiles of the Engineers, 
 herewith exhibited and above referred to. Through the whole of this 
 pass, the space between the jutting and precipitous rocks on the one 
 hand, and the river on the other, is so narrow, that in order to ob¬ 
 tain the proper and necessary breadth for the canal and its towing 
 path, a solid and wide wall must be constructed in the river, and if 
 the canal be intercepted and cut off by the Rail-Road, or otherwise 
 from that single route through this pass, it must be completely in¬ 
 tercepted and cut off from the whole of its route above, and be either 
 entirely stopped and defeated, or compelled to the precarious, dan¬ 
 gerous, and enormously expensive, and every way inconvenient and 
 burthensome expedient of crossing to the opposite side of the river, 
 on an aqueduct, and then in order to regain its route to its western 
 terminus, of recrossing the river on another such aqueduct, at such 
 unknown and uncertain point above, certainly not lower than Cum¬ 
 berland, as where it may please the complainants to allow them 
 verge and space enough . 99 From this, the defendants argue, that as 
 by an act of Congress, which the courts of justice are all bound to 
 notice, the President was authorized to order surveys to be made of 
 the most suitable routes for roads and canals, that therefore this 
 court must take notice, that the President did execute that law, by 
 ordering surveys to be made, that one of those surveys was made 
 expressly for this canal, as a location of its route, and as a first step 
 towards an absolute appropriation of the land, along that route, to 
 its use, that the maps and profiles now shown, are those made to 
 exhibit the result of that survey; and that those maps and profiles 
 clearly show that the canal has been either altogether intercepted 
 and cut off, or most illegally and ruinously turned aside from its 
 rightful and destined route, by the Rail-Road. This is drawing con¬ 
 sequence from consequence, and piling notice upon notice, to a great 
 extent and height indeed. The act of Congress as a public law, it is 
 true, must be noticed, and because the law presumes that every officer 
 has properly performed his duty until the contrary appears, it must 
 be admitted that the President did order some surveys to be madef 
 as required by that public law ; but there is no adjudged case, or 
 principle of law, which declares it to be the duty of the courts to 
 take judicial notice of the execution of any public statute whatever. 
 If they were bound to take notice of the manner in which this public 
 act of Congress had been executed, then, upon the same principle, 
 they would be bound to notice the manner in which every public 
 statute was executed. There are many public statutes requiring 
 acts to be performed, by Justices of the Peace and Constables, but to 
 take judicial notice of the manner in which such officers had exe¬ 
 cuted a public statute, and so to admit their ex parte proceedings to 
 affect the rights of property, would be absurd and mischievous. The 
 various modes in which the public statutes are carried into effect, by 
 the executive officers of our Government, are, in principle and in law, 
 
148 
 
 all proceedings of the same character; they are mere facts, and are 
 not some among those public proceedings of which the courts of 
 justice are bound to take notice; consequently, when, where, and 
 how those surveys were made, as authorized by the act of Congress, 
 and the topographical maps and profiles exhibiting the results of any 
 of them, are all matters of fact, to be shown and established by 
 proof; and even when they shall have been so established, it will 
 remain a question, how far they can be received even as evidence, 
 to affect the interests of any one, who was not a party to their being 
 made, or who had not, in any way admitted their verity and correct¬ 
 ness ; abstracting then every thing from the case of the defendants, 
 of which the court cannot take notice; and there remains nothing 
 left to them, with which they can assail the equity of the plaintiffs, 
 except their several acts of incorporation, but with these alone, they 
 have attempted to maintain their ground. 
 
 I have read the act incorporating the plaintiffs, and also that in¬ 
 corporating the defendants, and compared them with each other. 
 These two bodies politic are entirely distinct in all respects; there 
 is not one single sentence in the acts by which either has been in¬ 
 corporated, which has the most remote allusion to the other, nor 
 does the sense of any expression contained in either of their acts of 
 incorporation, in the slightest degree, indicate that there probably 
 may, or possibly can arise any jarring between their respective 
 franchises, or collision of their several interests in any way what¬ 
 ever. From all or any thing, apparent from the face of those legis¬ 
 lative enactments, there is no room to infer that each one of these 
 two corporations may not proceed in all their operations, without 
 the least interference with the other. If then, upon the face, and 
 according to every fair reading of these several acts of incorpora¬ 
 tion, all is harmonious between them, the discord can only have 
 arisen from the manner of executing the one or the other, or both of 
 those laws, and in no other way; and that this controversy between 
 these parties has only originated in that way, appears to be admitted 
 by the defendants themselves. 
 
 In their answer they say that “ according to the complainants* 
 own showing, and the facts are otherwise true and notorious, 
 they have the choice of two or more practicable routes for 
 their Rail-Road, without any interference with the canal, or con¬ 
 nexion with or even approximation of the river; the different 
 routes only presenting some differences in the comparative labor, 
 and expense of construction, and these compensated, if they occur 
 with any considerable increase on the more northern route, original¬ 
 ly proposed for the Rail Road, by the advantages and savings from 
 directness of course and shortness of distance, as the principal and 
 leading personages, both among the original projectors and promoters, 
 and the present managers and proprietors of the Rail Road, have re¬ 
 peatedly averred and publicly contended, the principle and the op¬ 
 eration of the lifting power of stationary steam engines, by which 
 the Rail Road overcomes ascents and gains new levels, admit of an 
 
149 
 
 infinitely greater diversity and extent of application than that of the 
 canal, circumscribed and limited as it is by water levels, and are 
 perfectly practicable and convenient, and within the ordinary compass 
 of that power, either to overcome all the necessary ascents on the 
 more northern and direct route first proposed for the said Rail Road, 
 or, if what the complainants designate the southern and circuitous 
 route be preferred by them, to assume, with ease and convenience, a 
 higher level than the canal on that route, and leave the canal ample 
 verge and room between the Rail Road and the river: there is no 
 necessary or proper connexion or dependence between the Rail Road 
 and the river, either extrinsically as regards the construction, appen¬ 
 dages, and uses of the Rail Road, or relatively as regards the pur¬ 
 poses of intercourse, trade, and commerce wnich the Rail Road was 
 designed to subserve : Whereas the river is, as it were, the life-blood 
 of the canal, and continual access and frequent communication from 
 one to the other, are inseparable from the very idea of the canal. 
 Here it is distinctly alleged, by the defendants, that the injury they 
 complain of, has arisen altogether from the location which the plain¬ 
 tiffs have given to their road under this act of incorporation—that is, 
 not from the law itself, but from the execution of the law. 
 
 The defendants insist, that, by virtue of their grants and franchi¬ 
 ses, they have a priority of right to the choice and selection of the 
 route and site of their canal along the margin and bank of the river 
 Potomac. They mainly and in every way rest upon this priority of 
 right to a choice of routes. If it exists at all, it must be founded up¬ 
 on the various facts and circumstances as shewn by them, when taken 
 in connexion with the acts of the General Assembly, by which they 
 have been incorporated, or it must be based upon those acts of Assem¬ 
 bly alone. But if, as in the first supposition, its foundation is com¬ 
 posed of those facts, taken with the law, then it certainly cannot 
 avail them upon the present motion, because it has been shewn those 
 facts are none of them of that character of which the court can now 
 take notice and act upon. Take the other supposition, and let their 
 alleged right be admitted to have been expressly given by a public 
 law, of which the court must take notice, even then they cannot avail 
 themselves of it upon the present motion, because they have been de¬ 
 prived of it, as they themselves state, not by the act itself by which 
 these plaintiffs have been incorporated*but by the manner in which 
 that law has been executed, which mode of executing the law is clear¬ 
 ly a matter of fact, of which this court cannot now take notice. I do 
 not understand that the defendants contend for an arbitrary and whim¬ 
 sical right of choice, which, without regard to their own real inter¬ 
 ests, may be capricioJfcy turned against the plaintiffs or any others, 
 merely for the purpose of intercepting their line of operations. They 
 certainly cannot claim such a right with any design of using it for 
 the very same evil purposes of which they themselves now complain ; 
 jt must he, therefore, that the right of choice for which they contend, 
 is one which in its exercise is to he governed by fairness, justice, and 
 equity. If this be the kind of right for which they contend, and 
 
150 
 
 none other could be sanctioned by a Court of Equity, then it is evi¬ 
 dent that the court lias not, as yet, been .furnished with the means of 
 forming any fair and correct judgment upon the subject. It has 
 heard, so far, only the allegations of one side, and that, too, without 
 any proof in support of those allegations which it can allow itself to 
 notice and act upon. The bill and all the allegations of the plaintiffs 
 are perfectly silent in respect to this right of choice as now claimed 
 by the defendants. The claim and every fact relating to it make their 
 appearance for the first time in the answer of the defendants. The 
 plaintiffs could not be, nor were they expected to come, prepared for 
 a vindication of their rights, so far as they are implicated by this 
 claim, their case is shewn by their bill, either as necessary to an in¬ 
 junction or to relief, called for no such disclosures as the defendants 
 have set forth respecting this claim of a right of choice, and conse¬ 
 quently every thing relating to it is entirely new matter, advanced in 
 avoidance of the plaintiff’s case, and concerning which they have yet 
 had no opportunity to shew any thing on their part. Justice and 
 equity, therefore, do most manifestly require that the injunction here¬ 
 tofore granted upon an equity which the defendants have been unable 
 otherwise to controvert, should be continued until the validity and ex¬ 
 tent of the claim of the defendants can be examined and ascertained 
 upon surveys and evidence which each party may be allowed to make 
 and produce, and from which the court may be furnished with the 
 means of determining whether or not these two apparently harmoni¬ 
 ous acts of incorporation have, in reality, by the improper execution 
 of one of them, been brought into ruinous conflict with each other. 
 
 If, upon an order of survey authorizing these parties to lay down 
 their respective pretensions in the usual manner, and on the return of 
 such topographical maps and profiles as maybe specially directed, if re¬ 
 quired, the fact appears that the location of the Rail Road does de¬ 
 prive the canal of its most suitable and advantageous route, then the 
 question will fairly arise and be correctly presented to the court, 
 whether the defendants have a priority of right to the choice, and se¬ 
 lection of a route for their canal, or not. The extent of the interfe¬ 
 rence and the nature of the collision between these two bodies politic 
 will then and in that way, be clearly and properly presented, accord¬ 
 ing to the shewing and proofs of both parties. 
 
 Whereupon it is on this 2^th day of September, 1829, Ordered , 
 That the injunction heretofore granted in this case be, and the same 
 is hereby, continued until the final hearing or further order. 
 
 THEODORICK BLAND, Chr. 
 
 # 
 
 ♦Test, RAMSAY WATERS, 
 
 Reg. Cur. Can. 
 
 True copy: 
 
151 
 
 THE CHESAPEAKE AND OHIO CANAL COMPANY 
 
 vs. 
 
 THE BALTIMORE AND OHIO RAIL ROAD COMPANY, 
 
 To Washington County Court, 1 
 Sitting as a Court of Equity. j 
 
 This, the bill of complaint, and injunction of the “ Chesapeake 
 and Ohio Canal Company, and of the Potomac Company,” respect¬ 
 fully shews, that, in the due pursuance and execution of the concur¬ 
 rent acts and compact of the States of Virginia and Maryland, and 
 of the United States in Congress assembled, for incorporating the 
 said Chesapeake and Ohio Canal Company, subscriptions have been 
 opened for the stock of the said Company, consisting of six millions 
 of dollars, divided into sixty thousand shares, of one hundred dollars 
 each, whereof more than one fourth, and of the major part of the 
 said stock has been duly subscribed, and among other of such sub¬ 
 scriptions, the Secretary of the Treasury of the United States, for 
 and in behalf of the United States, has duly taken, in pursuance of 
 the act of Congress for that purpose enacted, 10,000 shares, one 
 million of dollars; the State of Maryland, 5,000 shares—500,000 
 dollars; the Corporation of Washington, 10,000 shares—1,000,000 
 dollars ; the Corporation of Georgetown, 2,500 shares—250,000 
 dollars ; the Corporation of Alexandria, 2,500 shares—250,000 dol 
 lars; and divers individual subscribers in different parts of the Unit¬ 
 ed States, between 5,000 and 6,000 shares—500,000 or 600,000 dol 
 lars : that, in virtue of these subscriptions, the said company has 
 become duly organized and incorporated as a body politic or corpo¬ 
 ration aggregate, according to the terms and condition of its char, 
 ter, so established by concurrent acts and compacts as aforesaid : 
 that, in the further pursuance and execution of the said charter, the 
 Commissioners duly appointed by the Executives of Virginia and 
 Maryland, and the President of the United States, have called a 
 general meeting of the ^id subscribers on Friday, the 20th day of 
 the present month of June, at the City Ilall, in the City of Wash ¬ 
 ington, for the purpose of electingJfa President and six Directors, for 
 conducting the undertaking of the said canal, and managing the said 
 company’s business, of which call, and of the time and place of meet¬ 
 ing, the said Commissioners have given due notice by advertisements 
 in the public papers, as required by the said charter, at which meet¬ 
 ing the said company will proceed to make due election of the said 
 «President and Directors, who, immediately upon their election will 
 proceed to cause-the site of the said canal to be definitively surveyed 
 and laid down, and the work to be commenced without delay, and 
 these Complainants aver, that there is no wish, intention, or motive 
 whatsoever, for the said company, or the said President and Direc- 
 
152 
 
 tors to delay, for an instant, the commencement and prosecution of 
 the work ; but that it is their true and bona fide intention to proceed 
 in the same with all practicable despatch and energy, That the said 
 Potomac Company have duly assented to the said charter, and all the 
 provisions of the same, and have duly empowered their President 
 and Directors to surrender their charter, and convey, in due form of 
 law, to the Chesapeake and Ohio Canal Company, all the property, 
 rights and privileges by them owned, possessed, and enjoyed, under 
 their said charter, which surrender the said Chesapeake and Ohio 
 Canal Company are ready and willing to accept, and the same will 
 he speedily made and accepted ; in the mean time the said Potomac 
 Company retaining its corporate existence and capacity, and these 
 Complainants further shew, that, by the terms of their said charter, 
 the exclusive use and appropriation of the river Potomac, and all its 
 tributary streams, and of the adjacent lands in Maryland and Vir¬ 
 ginia, and the .District of Columbia, necessary for the construction 
 of the said canal, and its incidental or auxiliary works and appen¬ 
 dages, are vested in the said company by indefeasible grant and com¬ 
 pact, from the concurrent authorities of the said States and of the 
 United States, and that such grant is not only entitled to all the im¬ 
 munities and privileges of priority in point of time, but is founded 
 on higher and more irrepealable sanctions than any other grant or 
 charter that can possibly interfere with it, inasmuch as the said com* 
 pany is not only entitled to protection under the Constitution of the 
 United States upon the general faith and obligation of contracts, 
 against any legislative infringement of their grant, but, as no State 
 or sovereignty whatsoever is competent, by any legislative act, or 
 other erection of power whatsoever, in any manner to change, alter 
 or modify the terms of the said grant, or the rights and privileges 
 thereby conferred without the express assent and concurrence of all 
 the three sovereignties by whose authority and compact the said 
 charter was established : that the construction of the said canal, as 
 described in the said charter, has been for a long time, and before the 
 enactment of the said charter, and since the enactment and before 
 the actual organization of the said company, by means of the said 
 subscriptions as aforesaid, a concern of high public interest and im¬ 
 portance to most of the States, and in particular to the Congress of 
 the United States, and to the States of Virginia and Maryland, and 
 the citizens thereof, insomuch that, in the year 1821 , preparatory 
 examinations and surveys were instituted by the Legislatures of the 
 said two States, by Commissioners appointed under their authority, 
 in order, among other things, to report the most practicable and ad¬ 
 vantageous means of carrying that great scheme into effect, and to the 
 report of these Commissioners your Complainants refer : And, after 
 the enactment of the said charter, and before the said subscriptions 
 were filled up as aforesaid, the Congress of the United States autho¬ 
 rized and directed the route of the said proposed canal to be surveyed 
 and laid dow n by the Board of Engineers for internal improvement, 
 &c. in pursuance of which authority and direction the President of 
 
153 
 
 the United States caused official surveys and estimates of the cost of 
 the said canal to be made by a brigade or detachment of the said En¬ 
 gineers, whose report in detail was communicated by the President 
 to Congress, in December, 1826, since which fresh inspections of the • 
 same route, and further and more accurate estimates of the cost have 
 been made by other Engineers under the authority of Congress, 
 whose report and estimated have also been communicated to Congress 
 by the President, this last inspection and estimate having been sug¬ 
 gested by, and instituted at the request of a highly respectable Con¬ 
 vention of Delegates from several States, both East and West of the 
 Alleghany mountain, assembled at Washington, in conjunction with 
 Delegates from the District of Columbia, and styled the Chesapeake 
 and Ohio Canal Convention, being a convention delegated from those 
 States and District, expressly for the purpose of concerting measures 
 to fulfil the earnest hopes and wishes of the People for the execution 
 of this great and beneficial undertaking: to all which surveys, re¬ 
 ports, estimates and proceedings, preparatory and consequent there¬ 
 to, your Complainants pray that due reference may be had ; and 
 these Complainants further shew, that the said Engineers, in execu¬ 
 tion of the duties and authority of their said appointment, have, among 
 other things, surveyed and made an official report and return of their 
 survey of the route of the said canal from Pittsburgh, in Pennsylva¬ 
 nia, to a point in Alleghany County, in this State, near Cumberland, 
 
 * and thence to tidewater in the District of Columbia, which survey with 
 the other documents accompanying the same, is duly filed and recorded 
 in the Department of War, and with more recent estimates made by the 
 other engineers as aforesaid, was communicated by the President in 
 a public message to Congress, as aforesaid, and, constituted the prin¬ 
 cipal public evidence of the practicability, economy and expediency, 
 of the measure, upon which Congress at their last session, passed the 
 act authorizing said subscription by the Secretary of the Treasury : 
 and these complainants are well informed, have good reason to be¬ 
 lieve, and do verily think and believe, that the site and route of the 
 said canal and of its feeders and auxiliary works, as surveyed and 
 laid down as aforesaid, will, and are bona fide , intended to consti- 
 ture the main site and route of such canal, feeders and other works, 
 with little or no deviation now known or anticipated; though it may 
 possibly and probably happen that when their engineers come to 
 lay down the practical working plan of the w ork, some slight varia¬ 
 tions in the detail may be necessary, but no material variation from 
 the main route or site already surveyed and ascertained, as afore¬ 
 said : At any rate, these complainants insist, and are well advised, 
 that they have a good and indefeasible right to insist, that they have the 
 clear and absolute pre-emption and election, under their said charter, 
 of such route and site, in preference to all other persons and corpo¬ 
 rations, and companies, whatsoever, that they cannot be rightfully 
 restricted in their choice, of the most eligible route, if more than one 
 be practicable; and that within the legitimate sphere and compass 
 of such their choice and election, no other person, corporation, or 
 18 
 
154 
 
 company, whatsoever, has any right or authority to forestall the 
 first choice, and throw upon these complainants the necessity to adopt 
 any particular one, of any number of possible routes, if there he 
 more than one, far less, to oust these complainants of the only prac¬ 
 ticable and convenient route : And these complainants fuither shew, 
 that certain persons, styling themselves the Baltimore and Ohio 
 Rail Road Company, incorporated by the act of Assembly, passed 
 for that purpose, by the General Assembly of Maryland, on the 28th 
 day of February, 1827, (to which these complainants refer) and their 
 agents and attornies, have, under pretence of exercising the corporate 
 authority and privileges granted to them by their said charter, 
 caused a route for their said proposed rail road, to be surveyed and 
 laid down, following the margin of the river, or the meanders of the 
 low grounds near the margin of the river Potomac, that the route 
 and site of the said road, so surveyed and laid down, directly and 
 necessarily interferes with the route and site, necessary and proper for 
 the said canal, and its incidental works, and which the said Balti¬ 
 more and Ohio Rail Road Company (who these complainants pray, 
 may be made defendants to this bill,) their agents and attornies had 
 due notice, and well knew, were intended and were necessary to be 
 located on the same route and site, so surveyed, for the said road, 
 that in many of the most important parts of the said route, the said 
 defendants have located their said road by their said surveys, on the 
 only ground where it is at all practicable to conduct the said canal, 
 on the Maryland side of the river, on which side all the way from 
 Cumberland to tide water, they knew the said canal was intended to 
 be constructed, and had been so defined in the said official surveys 
 and estimates, all of which assumed that route as their basis; that 
 inasmuch as the choice of routes for the canal is necessarily limited 
 by water levels and other circumstances, and as the route for the 
 said road admits of an infinitely larger scope of choice, if it be not 
 in the nature of things indefinite, these complainants have good rea¬ 
 son to conclude, think and believe, and indeed, are credibly informed 
 from other sources, and do verily think and believe, that the site and 
 route so chosen, and surveyed for the said road, have been so chosen 
 with a preconcerted design and deliberate intent to forestall and 
 oust these complainants of their chosen and designated route 
 on the Maryland side of the river, and that the defendants and 
 their agents [have given out and contended that these complainants 
 were entitled to no priority in the location of the site of their ca¬ 
 nal ; but that whichsoever of the said companies should happen 
 first to get hold of any piece of ground, by contract or condemna¬ 
 tion, in the proposed route of the canal, would be entitled to appro¬ 
 priate it to the exclusive use of such company : that the said defend¬ 
 ants, in pursuance and execution of this unjust and unlawful purpose, 
 have already within the last three or four days, just as they ap¬ 
 prehended these complainants were about to commence active opera¬ 
 tions upon a large scale for the completion of the canal, obtained six 
 conveyances, for several contigous tracts of land in the neighbour- 
 
155 
 
 hood of Sharpsburgh, in the county of Washington, which are filed 
 with the clerk of that county to he recorded, and to which these com¬ 
 plainants refer : that three of the said conveyances purport to con¬ 
 tain calls or boundaries, which shew that the lands so conveyed lie 
 immediately along the margin of the Potomac, and these complain¬ 
 ants believe, that all six of the tracts are contiguous, and would 
 shut out the said canal in that quarter, not only from pursuing the 
 route so surveyed and laid down, for the same as aforesaid ; hut, from 
 any practicable route whatsoever, by which it could pass below the 
 said tract, that the defendants and their agents are actively employed 
 and now actually engaged in endeavours to forestall and take up either 
 by contractorcondemnation, the w hole or greater part of the margin of 
 the said river and its adjacent banks and low grounds, throughout its 
 whole line, through the counties of Alleghany, Washington and Fred¬ 
 erick, and that they are hastening on the consummation of this pur¬ 
 pose, in order to forestall and frustrate such active and efficient 
 measures, as it is notoriously expected and believed the President 
 and Directors of the Chesapeake and Ohio Canal Company, will 
 immediately upon their election, in the course of ten days from this 
 time, adopt, for the appropriation of the ground designated by the 
 said surveys of the Engineers, under the authority of Congress, as 
 aforesaid, for the site and route of the said canal, and indispensably 
 necessary for the completion of the canal upon the plan suggested by 
 those surveys, or upon any practicable and convenient plan; and 
 these complainants are credibly informed, and do verily think and 
 believe, that the existing survey and location of the said road, as far 
 below Cumberland as it has already been made along the whole line 
 of the river Potomac, through the three counties aforesaid, have been 
 made expressly and directly with a view to intercept and prevent the 
 construction of the said canal, on its said designated and surveyed 
 route; and that if not already done, the location of the said road will 
 be extended upon the same plan of exclusion as low down the river 
 as die mouth of Seneca in Montgomery county. These complainants 
 know not certainly what other contracts or agreements the defen¬ 
 dants have made with the proprietors of lands on the proposed 
 route of the said road, besides the said conveyances already re¬ 
 corded as aforesaid, but have good reason to believe, and do 
 verily think and believe, from good and credible information, 
 that they arc exerting themselves to the uttermost, by their agents, 
 to make other contracts, on a similar plan, and for a similar 
 purpose, with the other proprietors; and that they have obtained se¬ 
 veral warrants from Justices of the Peace in two, if not all three of 
 the said Counties, for summoning juries of inquest, for the condem¬ 
 nation of such of the said lands as belong to persons unwilling to 
 abet the scheme of defeating the locations already made for the be¬ 
 nefit of these complainants; and that such condemnations are di¬ 
 rected to all the most difficult passes on or near the margin of the 
 river, which, being once prc-occupied and forestalled, leave no other 
 practicable and convenient, if possible route, for the Canal ; and 
 
156 
 
 that their entire location of their said lioad, as surveyed and pro- 
 posed to be carried into effect by means of sucli contracts and con¬ 
 demnations, is calculated and intended to have the effect, and, if per¬ 
 mitted, must necessarily have the effect, of expelling the said Canal 
 and all its incidental works from the route and site so designated 
 and surveyed for the same, as aforesaid, and from any other possible 
 route on the Maryland side of the river; and, indeed, leaving it ex¬ 
 tremely doubtful whether any practicable route at all could be found 
 on the other side; and. if practicable at all, making it certain it 
 would be vastly and incalculably more expensive and inconvenient 
 and, in all events, reduce these complainants to the enormous expense 
 and delay of new' surveys and estimates for nearly the whole length 
 of the Eastern section of the Canal. And though these complain¬ 
 ants are w’ell advised and believe that the then essential right to 
 maintain the present location of their Canal, or to elect any other, is 
 paramount and indefeasible, both at law and equity; and that the 
 proceedings of the defendants to frustrate that right, as aforesaid, 
 would be merely nugatory and void ; yet, such is the peculiar nature 
 of the undertaking in hand, that no after remedy could possibly com¬ 
 pensate these complainants, or the public, for the delay and inconve¬ 
 nience of a contested possession, if the defendants arc once admitted 
 into an adverse possession of the entire line in dispute, and left free 
 to hold it under contest, the most precious and possibly the most in¬ 
 dispensable time for the completion of the work may be consumed in 
 litigation ; till, at length, their charter may be forfeited by Japse of 
 time, according to its prescribed limitations : that preventive and 
 summary justice is the only justice that can be administered in the 
 case; and if the defendants really desire to prosecute with effect their 
 ^plan of a Rail Road, it may be expected that they would equally de¬ 
 sire the question of right (if such question can be made in the case) 
 to be decided in the more summary form of the preventive remedy, 
 by injunction. To the end, therefore, that the defendants may true 
 and perfect answer make, &c. &c. particularly that they may answer 
 and discover what surveys and locations of the said Road they have 
 made or caused to be made ; how and at what points they interfere 
 with said designated and surveyed route of the Canal, or with such 
 route of the same as is the most practicable and expedient: that alt 
 the said conveyances, so filed for record, as aforesaid, and all other 
 conveyances and condemnations of land, if any, heretofore made, or 
 hereafter to be made, by the defendants, or by their agents, or at 
 their request, in pursuance of such surveys and locations, may be 
 annulled and set aside : that the said defendants, their agents and at- 
 tornies, and all persons acting by their authority, or in their behalf, 
 may be strictly prohibited and enjoined from making any contractor 
 agreement with, or receiving any deed or conveyance whatsoever, 
 from any person or persons whatsoever, for any lands or tenements 
 whatsoever, within the bounds already marked out or surveyed by 
 the defendants, for the said Rail Road, or within the bounds of or in 
 any manner interfering with the lands, tenements, or appurtenances, 
 
157 
 
 designated by the said surveys and reports of the engineers, under 
 the authority of the Government of the United States, for the site or 
 route of the said Chesapeake and Ohio Canal, or of any of its inci¬ 
 dental works or appendages, or any where so near the same, as to 
 restrict the liberty of choice in the,Chesapeake and Ohio Canal Com¬ 
 pany, to appropriate the ground near or about the said surveyed 
 route or site, and the materials thereon, to the purposes of the said 
 Canal, until the said Chesapeake and Ohio Canal Company shall 
 have been allowed a reasonable time, in the judgment of the Court, 
 to complete their actual surveys and definitive locations of their said 
 Canal, according to a reasonable and fair exercise of their priority 
 of election and appropriation: that, in the mean time, all the Justi¬ 
 ces of the Peace and Sheriffs of the Counties of Alleghany, Wash¬ 
 ington, and Frederick, be strictly prohibited and enjoined, the one 
 from issuing, and the other from executing any warrant for summon¬ 
 ing any jury or juries to assess damages for the condemnation of any 
 lands so surveyed or marked out by the defendants, for the route or 
 site of the said Rail Road : and that the complainants may have such 
 further and other relief in the premises as the Court shall seem meet. 
 May it please you to grant to these complainants the State of Mary¬ 
 land’s writ and writs of subpoena and injunction to be directed to the 
 said defendants, their agents,&c., and to the said Justices and Sheriffs 
 &c. commanding them, &c, &c. 
 
 WILLIAM PRICE, 
 WALTER JONES, 
 
 j- Sol. for Compt’s. 
 
 June 10 th, 1828. 
 
 Ordered by the Court this 10th day of June, 1828, that injunction 
 issue in this case pursuant to the prayer of this bill. 
 
 TH. BUCHANAN. 
 
 Walter Jones, being a member of both the corporations who are 
 complainants in this Bill, makes oath that he is credibly informed, 
 and has good reason to think and believe, and does verily think and 
 believe that the allegations contained in the within bill are substan¬ 
 tially true as therein stated. 
 
 Sworn to in open Court this 10th June, 1828. 
 
 Test, O. H. WILLIAMS, Clerk . 
 
 Washington Countif , ss. 
 
 I hereby certify that the aforegoing is a true and perfect copy of 
 the original bill filed in Washington County Court, as a Court of 
 Equity. 
 
 [seal.] In testimony whereof I hereto subscribe my name and 
 affix the seal of said Court, this 19th April, 1830. 
 
 0. H. WILLIAMS, Clerk. 
 
 Wash. Co. CL Md. 
 
158 
 
 D. 
 
 POTOMAC COMPANY. 
 
 PROCEEDINGS OF THE POTOMAC COMPANY. 
 
 Georgetown, D. C. 1 6th May , 1825. 
 
 At a special meeting of the Stockholders of the Potomac Compa¬ 
 ny, held this day at Semmes’ Tavern, previous notice thereof having 
 been given conformably to law— 
 
 The following resolutions were unanimously adopted : 
 
 That this meeting, having duly considered the act of the General 
 Assembly of the State of Virginia, passed at the December session 
 thereof, in the year 1823, entitled “ An act incorporating the Ches¬ 
 apeake and Ohio Canal Company, and the acts of the General As¬ 
 sembly of Maryland, and of the Congress of the United States, con¬ 
 firming the same, and being willing and desirous that the charter 
 shall be granted and confirmed to the said Chesapeake and Ohio Ca¬ 
 nal Company, do hereby declare the full and free assent of the Po¬ 
 tomac Company to the said act incorporating the said Chesapeake 
 and Ohio Canal Company, and to all the provisions thereof. 
 
 That the President .of the Potomac Company be, and he is here¬ 
 by, required to deliver to the Executives of the State of Virginia, 
 Maryland, and Pennsylvania, respectively, and to the Secretary of 
 the Treasury of the United States, copies of the foregoing declara¬ 
 tion of assent and corporate act of the Potomac Company, as requi¬ 
 red by the first section of the act of the General Assembly of Vir¬ 
 ginia, entitled ‘‘An act incorporating the Chesapeake and Ohio Ca¬ 
 nal Company.” 
 
 That the President and Directors of the Potomac Company be, 
 and they arc hereby, authorized and required, in the name and be¬ 
 half of this Company, whenever, agreeably to the terms and provi¬ 
 sions of the aforesaid act of Virginia, entitled “An act incorporating 
 the Chesapeake and Ohio Canal Company,” the subscribers therein 
 mentioned and referred to shall have become incorporated, to make a 
 surrender of the charter of the Potomac Company, to the said Ches¬ 
 apeake and Ohio Canal Company, and to convey, in due form of law, 
 to the said Chesapeake and Ohio Canal Company, all the property, 
 rights, and privileges, owned, possessed, and enjoyed, by the said 
 Potomac Company, under their said charter; to beheld, used, and 
 occupied, by Ihe said Chesapeake and Ohio Canal Company, in the 
 same manner and to the same effect, as the said Potomac Company 
 now hold, possess, and occupy, the same by law. And it is hereby 
 resolved and declared, that, upon the completion of the said surrender 
 and conveyance by the said President and Directors, to be evidenced 
 by deed or deeds in the name of this Company, under the hands of 
 the said President and Directors, or a majority of them, and the cor¬ 
 porate seal of this Company, the said charter shall be, and hereby 
 is, effectually surrendered, and all the said property, rights, and pri¬ 
 vileges, shall be, and hereby arc, effectually conveyed to the said 
 Chesapeake and Ohio Canal Company, according to the tenor and 
 
159 
 
 effect, true intent and meaning, of the said act and acts so incorpora¬ 
 ting the Chesapeake and Ohio Canal Company, as aforesaid. 
 
 In testimony whereof, as the corporate act of the Potomac Co. &c. 
 
 Office of the Potomac Company, 
 
 Georgetown , \ 6th May, 1825. 
 
 I hereby certify the aforegoing to be a true and faithful extract 
 from the records of the proceedings of the Potomac Company. 
 
 ROBERT BARNARD, 
 
 Treas. and Clk. Poto. Com . 
 
 Georgetown, July 10, 1828. 
 
 At a special general meeting of the Stockholders of the Potomac 
 Company, holden this day at Semmes’ Tavern, previous notice there¬ 
 of having been given conformably to law, 
 
 The meeting took into consideration the acts amendatory of the 
 act incorporating the Chesapeake and Ohio Canal Company, and it 
 was decided to vote separately on each of the acts specifically requir¬ 
 ing the assent of this Company. 
 
 The act of Maryland, entitled “An act to amend the ‘act incor¬ 
 porating the Chesapeake and Ohio Canal Company,” passed at the 
 December session, 1826, of the Legislature of said State, was read, 
 considered, and received the unanimous assent of this meeting. 
 
 The act of Maryland, entitled ” An act further to amend the 
 act incorporating the Chesapeake and Ohio Canal Company,” passed 
 at the December session, 1827, of the Legislature of said State, was 
 read, considered, and the unanimous assent of this meeting was given 
 thereto. 
 
 The following resolution was offered, and, after consideration, was 
 unanimously adopted. 
 
 Whereas, since the resolution unanimously adopted at the general 
 meeting of the Potomac Company, holden on the 16th May 1825, in 
 relation to a surrender of the rights of said Company to the Chesa¬ 
 peake and Ohio Canal Company, sundry acts have passed the Legis¬ 
 latures of Virginia and Maryland, and the Congress of the United 
 States, modifying in sundry particulars, for which reference may be 
 had to the said acts, the charter of the said Chesapeake and Ohio 
 Canal Company, in some of which acts it is expressly provided, that 
 they shall, prior to their operation, receive the assent and approba¬ 
 tion of this Company, and in relation to others, the assent and ap¬ 
 probation of this Company may, in construction of law, be deemed 
 essential to their validity, in whole or in part: 
 
 Pc it therefore unanimously resolved by this general meeting , That 
 the assent and approbation of the Potomac Company is hereby given 
 expressly to each and all of said acts, so far as the same may be 
 deemed necessary to the validity or future operation of each and all 
 of said acts, in as full and perfect manner as if each and all of said 
 acts were herein specifically enumerated and recited. 
 
 JAMES KEITII, Chairman. 
 
160 
 
 Resolved , unanimously, That the President of the Potomac Compa¬ 
 ny be, and he is hereby, required to deliver to the Executives of the 
 States of Virginia and Maryland, respectively, and to the Secretary 
 of the Treasury of the United States, copies, under the seal of this 
 Company, of the aforegoing declaration of assent and corporate act of 
 the Potomac Company, to the acts therein referred to. 
 
 JAMES KEITH, Chairman . 
 
 DEED OF SURRENDER OF THE POTOMAC COMPANY. 
 
 Know all men by these presents, That, whereas at a ge¬ 
 neral meeting of the Stockholders of the Potomac Company, duly 
 held at Semmes’s Tavern, in Georgetown, in the District of Colurfi- 
 bia, on the sixteenth day of May, in the year eighteen hundred and 
 twenty five, the said Potomac Company duly signified and declared 
 their assent to the provisions of the Act of the General Assembly of 
 Virginia, passed at the December session thereof, in the year eigh¬ 
 teen hundred and twenty-three, entitled “An act incorporating the 
 Chesapeake and Ohio Canal Company , 99 and to the acts of the Ge¬ 
 neral Assembly of Maryland, and of the Congress of the United 
 States, confirming the same, by the corporate act of the said Poto¬ 
 mac Company, duly executed, copies whereof have been duly deliver¬ 
 ed to the Executives of the States of Virginia, Maryland, and Penn¬ 
 sylvania, and to the Secretary of the Treasury of the United States, 
 pursuant to the directions of the said acts of Assembly and of Con¬ 
 gress : And whereas, at the same meeting of the Potomac Company, 
 held as aforesaid, the President and Directors of the said Company 
 were duly authorized and required by the said Company to make, in 
 the name and behalf of the said Company, a surrender of the charter 
 of the said Company to the said Chesapeake and Ohio Canal Com¬ 
 pany, and to convey, in due form of law, to the said Chesapeake and 
 Ohio Canal Company, all the property, rights, and privileges, own¬ 
 ed, possessed, and enjoyed, by the said Potomac Company under their 
 charter, to be held, used, and occupied, by the said Chesapeake and 
 Ohio Canal Company, in the same manner, and to the same effect, as 
 the said Potomac Company held, possessed, and occupied, the same 
 by law; that is to say, whenever, agreeably to the terms and provi¬ 
 sions of the aforesaid act of Virginia, the subscribers therein mention¬ 
 ed and referred to should have become incorporated ; and it was then 
 and there by the said Potomac Company, by their corporate act duly 
 made and recorded, further resolved and declared, that, upon the 
 completion of the said surrender, and conveyance, by the said Presi- 
 sident and Directors, to be evidenced by deed or deeds in the name of 
 the said Potomac Company, under the hands of the said President and 
 Directors, or a majority of them, and the corporate seal of the said 
 Potomac Company, the said charter of the said Potomac Company 
 should be, and, by the said last mentioned corporate act of the said 
 Company, become, effectually surrendered, and all the said property, 
 rights, and privileges, effectually conveyed to the Chesapeake and 
 Ohio Canal Company, according to the tenor and effect, true intent and 
 
161 
 
 meaning, of flic said act and acts so incorporating the Chesapeake and 
 Ohio Canal Company, as aforesaid ; all which will more particularly 
 and at large appear, reference being had to the record of the proceedings 
 and corporate acts of the said Potomac Company: And whereas the 
 subscribers to the capital stock of the said Chesapeake and Ohio Ca¬ 
 nal Company have become, and now are, fully incorporated as a body 
 politic and corporation aggregate, agreeably to the provisions of the 
 said act of Virginia, and by lorce of that act, and of the other acts 
 confirming the same as aforesaid ; and being so incorporated, have 
 duly elected a President and six Directors, as authorized and requir¬ 
 ed by the said act and acts of Assembly and of Congress, who have 
 respectively taken the oath or affirmation prescribed by the same, 
 and are now duly organized as a Board : Now, be it known, that 
 the said Potomac Company, by their said President and Directors, 
 acting in the name and behalf of the said Company, in consideration 
 of the premises, and in the due and faithful pursuance and execution of 
 the intent of the said Company, so resolved and declared as aforesaid, 
 and of the power and authority by them vested in the said President 
 and Directors as aforesaid, have given, granted, surrendered, trans¬ 
 ferred, assigned, and conveyed, and do hereby, by these presents, 
 give, grant, surrender, transfer, assign, and convey, to the said Che¬ 
 sapeake and Ohio Canal Company, and to their successors forever, 
 the charter of the Said Potomac Company, and all the property, 
 rights, and privileges, by them owned, possessed, and enjoyed, under 
 the same : To have and to hold all and singular the said property, 
 rights, and privileges, unto the said Chesapeake and Ohio Canal 
 Company, and their successors for ever, to be held, possessed, used, 
 and occupied by them, and to their only use, benefit, and behoof, in 
 the same manner, and to the same effect, as the said Potomac Cou£ 
 pany held, possessed, and occupied, the same by law, on the said six¬ 
 teenth day of May, in the year eighteen hundred and twenty-five, 
 in witness whereof, John Mason, President of the Potomac Company, 
 and Jonah Thompson, John Laird, and Clement Smith, Directors of 
 the said Company, being a majority of the said President and Direc¬ 
 tors, have, on this fifteenth day of August, in the year eighteen hun¬ 
 dred and twenty-eight, hereunto subscribed their names, with their 
 proper hands, and affixed the corporate seal of the said Company, in 
 due pursuance and execution of the power and authority vested in the 
 said President and Directors by the said Company as aforesaid. 
 
 J. MASON, 
 
 JONAH THOMPSON, 
 JOHN. LAIRD, 
 
 C. SMITH. 
 
 Sealed and delivered iikthc presence of 
 W. CRANCH. 
 
 ROBERT BARNARD, Sec . FoU Co. 
 
 District of Columbia , to wit: 
 
 Be it known, that on this fifteenth day of August, in (he year of 
 our Lord eighteen hundred and twenty eight, before the subscriber, 
 19 
 
162 
 
 William Crancli, Chief Judge of the Circuit Court of the District of 
 Columbia, personally appear the above-named John Mason, Presi¬ 
 dent, and Jonah Thompson, John Laird, and Clement Smith, Direc¬ 
 tors of the said Company, being a majority of the said President and 
 Directors of the Potomac Company, and before me execute and ac¬ 
 knowledge the aforegoing deed or instrument of writing, as and for 
 the act and deed of the said Potomac Company, duly executed and 
 delivered by them, on the considerations and for the purposes therein 
 set forth, according to the true intent, meaning, and purport of the 
 same. 
 
 W. CRANCH. 
 
 At a meeting of the Stockholders of the Chesapeake and Ohio Canal 
 Company , holden the 17 th September , 1828, by adjournment from 
 the 1 Oth of the same month , it was 
 
 Resolved by the Stockholders of the Chesapeake and Ohio Canal 
 Company in General Meeting , That the Chesapeake and Ohio Canal 
 Company, do approve and accept the surrender and transfer of the 
 charter of the Potomac Company to the Chesapeake and Ohio Canal 
 Company, made on the 15th day of August, 1828, by the President 
 and Directors of the Potomac Company, pursuant to the resolutions of 
 the Stockholders of the said Company, and to the terms of the char¬ 
 ter of the Chesapeake and Ohio Canal Company. 
 
 EXTRACTS FROM ACTS OF THE STATE OE VIRGINIA IN RELATION 
 • TO THE POTOMAC COMPANY. 
 
 An ad for opening and extending the navigation of Potomac river . 
 
 [Passed October , 1784.] 
 
 “ 1. Whereas the extension of the navigation of Potomac river, from 
 tide water to the highest place practicable on the North branch, 
 will be of great public utility, and many persons are willing to 
 subscribe large sums of money to effect so laudable and beneficial 
 a work; and it is just and proper that they, their heirs, and as¬ 
 signs, should be empowered to receive reasonable tolls forever, in 
 satisfaction for the money advanced by them in carying the work 
 into execution, and the risk they run : and whereas it may be ne¬ 
 cessary to cut canals, and erect locks and other w'orks on both 
 sides of the river, and the Legislatures of Maryland and Virginia, 
 impressed with the importance of the object, are desirous of en¬ 
 couraging so useful an undertaking : Therefore,” 
 i6 3. And be it enacted , That in case one half of the said capital, or 
 a greater sum, shall be subscribed as aforesaid, the said subscribers, 
 and their heirs and assigns, from the time of the said first meeting, 
 shall be, and are hereby declared to be, incorporated into a company, 
 by the name of the “ Potomac Company,” and may sue and be sued 
 as such ; and such of the said subscribers as shall be present at the: 
 
I 
 
 16 S 
 
 said meeting, or a majority of them, are hereby empowered and re¬ 
 quired to elect a president and four directors, for conducting the said 
 undertaking, and managing all the said company’s business and con¬ 
 cerns, for and during such time, not exceeding three years, as the said 
 subscribers, or a majority of them, shall think lit. And in counting 
 the votes of all general meetings of the said company, each member 
 shall be allowed one vote for every share, as far as ten shares, and 
 one vote for every five shares above ten, by him or her held at the 
 time in the said company ; and any proprietor, by writing under his 
 or her hand, executed before two witnesses, may depute any other 
 member or proprietor to vote and act as proxy forjiim or her, at any 
 general meeting.” 
 
 “4. Jlnd be it enacted , That the said president and directors so elect¬ 
 ed, and their successors, or a majority of them assembled, shall have 
 full power and authority to agree with any person or persons, on be¬ 
 half of said company, to cut such canals, and erect such locks, and 
 perform such other works as they shall judge necessary for opening, 
 improving, and extending the navigation of the said river above tide 
 water, to the highest part of the North Branch, to which navigation 
 can be extended, and carrying on the same, from place to place, and 
 from time to time, and upon such terms, and in such manner as they 
 shall think fit; and out of the money arising from the subscriptions 
 and the tolls, and other aids hereinafter given, to pay for the same 
 and to repair and keep in order the said canals, locks, and other 
 works necessary thereto, and to defray all incidental charges : 
 
 " 9. Jlnd be it further enacted , That, for and in consideration of the 
 expenses the said proprietors will be at, not only in cutting the said 
 canals, erecting locks, and other works, for opening the different falls 
 of the said river, and in improving and extending the navigation 
 thereof, but in maintaining and keeping the same in repair, the said 
 canals and works, with all their profits, shall be, and the same are 
 hereby, vested in the said proprietors, their heirs and assigns, forever, 
 as tenants in common, in proportion to their respective shares, and 
 the same shall be deemed real estate, and be forever exempt from 
 payment of any tax, imposition, or assessment, whatsoever; and it 
 shall and may be lawful for the said president and directors, at all 
 times forever hereafter, to demand and receive, at the nearest conve¬ 
 nient place below the mouth of the South branch, and at or near 
 Bayne’s Falls, and at or above the Great Falls of the river Potomac, 
 and every of these places separately, for all commodities transported 
 through either of them, respectively, tolls, according to the following 
 table and rates, to wit 
 
 “ And in case of refusal or neglect to pay the tolls at the time of 
 offering to pass through any,of the said places, and previous to the 
 vessel’s passing through the same, the collectors of the said tolls may 
 lawfully refuse passage to such vessels ; and if any vessel shall pass 
 without paying the said toll, then the said collectors may seize such 
 vessel, wherever found, and sell the same at auction for ready money, 
 which, so far as is necessary, shall be applied towards paying the 
 
164 
 
 said toll, and all expenses of seizure and sale, and the balance, if any, 
 shall be paid to the owner, and the person having the direction of 
 such vessel shall be liable for such toll, if the same is not paid by 
 sale of such vessel, as aforesaid. 
 
 44 10. And be it enacted, That the said river, and the works to be 
 erected thereon in virtue of this act, when completed, shall forever 
 thereafter be esteemed and taken to be navigable as a public highway, 
 free for the transportation of all goods, commodities, or produce, 
 whatsoever, on payment of the tolls imposed by this act; and no 
 other toll or tax whatever, for the use of the water of the said river, 
 and the works thereon erected, shall, at any time hereafter, be im¬ 
 posed, by both or either of the said States, subject, nevertheless, to 
 such regulations as the Legislatures of the said States may concur in, 
 to prevent the importation of prohibited goods, or to prevent fraud 
 in evading the payment of duties imposed in both or either of the said 
 States, on goods imported into either of them. And whereas it is 
 necessary for the making the said canal, locks, and other works, that 
 a provision should be made for condemning a quantity of land for the 
 purpose— 
 
 44 11. Be it enacted , That it shall and may be lawful for the said 
 president and directors, or a majority of them, to agree with the own¬ 
 ers of any land, through which the said canal is intended to pass, 
 for the purchase thereof, and in case of disagreement, or in case the 
 owner thereof shall be a feme-covert, under age, non compos, or out 
 of the State, on application to any two justices of the county, in 
 which such land shall lie, the said justices shall issue their warrant 
 under their hands, to the sheriff of their county, to summon a jury of 
 twenty-four inhabitants of his county, of property and reputation, not 
 related, to the parties, nor in any manner interested, to meet on the 
 land to be valued, at a day to be expressed in the warrant, nor less 
 than ten, nor more than twenty days thereafter; and the sheriff, upon 
 receiving the said warrant, shall forthwith summon the said jury, and 
 when met, provided that not less than twelve do appear, shall admin¬ 
 ister an oath or affirmation to every juryman that shall appear : 
 4 That he will faithfully, justly, and impartially, value the land, 
 (not exceeding in any case the width of one hundred and forty feet) 
 and all damages the owner thereof shall sustain by the cutting the 
 canal through such land, according to the best of bis skill and judg¬ 
 ment ; and that in such valuation, he will not spare any person 
 through favor on affection, nor any person grieve through malice, 
 hatred, or ill will.’ And the inquisition thereupon taken, shall be 
 signed by the sheriff, and some twelve or more of the jury, and re¬ 
 turned by the sheriff to the clerk of his county, to be by him record¬ 
 ed : And upon every such valuation, the jury is hereby directed to 
 describe and ascertain the bounds of tbe land by them valued, and 
 their valuation shall be conclusive on all persons, and shall be paid 
 by the said president and directors, to the owner of the land, or his 
 legal representative; and on payment thereof, the said company 
 shall be seized in fee of such land, as if conveyed by the owner to 
 
165 
 
 them, and their successors, by legal conveyance : Provided , never¬ 
 theless, That if any farther damage shall arise to any proprietor of 
 land, in consequence of opening such canal, or in erecting such works, 
 than had been before considered and valued, it shall and may be law¬ 
 ful for such proprietor, as often as any such new damage shall hap¬ 
 pen, by application to, and a warrant from, any two justices of the 
 county where the lands lie, to have such further damage valued by a 
 jury in like manner, and to receive and recover the same of the said 
 president and directors. But nothing herein shall be taken or con¬ 
 strued to entitle the proprietor of any such land to recover compensa¬ 
 tion for any damages which may happen to any mills, forges, or other 
 waterworks or improvements, which shall be begun or erected by 
 such proprietor, after such first valuation, unless the said damage is 
 wilfully or maliciously done by the said president and directors, or 
 some person by their authority. 
 
 “ 12. And be it enacted, That the said president and directors, or 
 a majority of them, are hereby authorized to agree with the propri¬ 
 etors for the purchase of a quantity of land, not exceeding one acre, 
 at or near each of the said places of receipt of tolls aforesaid, for the 
 purpose of erecting necessary buildings; and in case of disagree 
 ment, or any of the disabilities aforesaid, or the proprietor being out 
 of the State, then such land may be valued, condemned, and paid 
 for, as aforesaid, for the purpose aforesaid ; and the said company 
 shall, upon payment of the valuation of the said land, be seized there¬ 
 of, in fee simple, as aforesaid : And whereas some of the places 
 through which it may be necessary to conduct the said canals may be 
 convenient for erecting mills, forges, and other water works, and the 
 persons possessors of such situation may design to improve the same, 
 and it is the intention of this act not to interfere with private property, 
 [)ut for the purpose of improving and perfecting the said navigation— 
 
 “ IS. Be it enacted , That the water, or any part thereof, conveyed 
 through any canal or cut made by the said company, shall not be used 
 for any purpose but navigation, unless the consent of the proprietors 
 of the land through which the same shall be led, be first had ; and 
 the said president and directors, or a majority of them, are hereby 
 empowered and directed, if it can be conveniently done, to answer 
 both the purposes of navigation and water works aforesaid, to enter 
 into reasonable agreements with the proprietors of such situation, con¬ 
 cerning the just proportion of the expenses of making large canals or 
 cuts capable of carrying such quantities of w ater as may be sufficient 
 for the purposes of navigation, and also for any such water works as 
 aforesaid. 
 
 “ And whereas it hath been represented to this, General Assembly, 
 that sundry persons are willing and desirous, on account of the great 
 public advantages and improvement their estates may receive thereby, 
 to promote and contribute towards so useful an undertaking, and to 
 subscribe sums of money to be paid on condition the said works are 
 really completed and carried into execution, but do not care to run any 
 risk, or desire to have any property therein— 
 
166 
 
 a 15. Be it therefore enacted , That the said president and directors 
 shall be, and are hereby empowered to receive and take in subscrip¬ 
 tions, upon the said condition, and upon the said works being com¬ 
 pleted and carried into execution, according to the true intent and 
 meaning of this act, that it shall and may be lawful for the said pre¬ 
 sident and directors, or a majority of them, in case of refusal or ne¬ 
 glect of payment, in the name of the company as aforesaid, to sue for 
 and recover of the said subscribers, their heirs, executors or admi¬ 
 nistrators, the sums by them respectively subscribed, by action of 
 debt, or upon the case, in any court of record within this State. 
 
 a 16 . And be it enacted , That, if the said capital, and other aids 
 already granted by this act, shall prove insufficient, it shall and may 
 he lawful for the said company, from time to time, to increase the 
 said capital by the addition of so many more whole shares, as shall 
 be judged necessary by the said proprietors, or a majority of them, 
 holding at least three hundred shares, present at any general meeting 
 of the said company. 
 
 a 17 . And it is hereby declared and enacted , That the tolls herein¬ 
 before allowed, to be demanded and received at the nearest conveni¬ 
 ent place below the mouth of the South Branch, are granted, and shall 
 be paid, on condition only, That the said Potomac Company shall 
 make the river well capable of being navigated in dry seasons, by 
 vessels drawing one foot water from the place on the North Branch, 
 at which a road shall set off to the Cheat river, agreeably to the de¬ 
 termination of the Assemblies of Virginia and Maryland, to and 
 through the place which may be fixed on, below the mouth of the 
 South Branch , 1 for receipt of the tolls aforesaid ; but if the said river 
 is only made navigable as aforesaid, from Fort Cumberland, to and 
 through the said place below the mouth of the South Branch, then only 
 two-thirds of the said tolls shall be there received. That the tolls 
 hereinbefore allowed, to be demanded and received at or near 
 Payne’s Falls, are granted and shall be payable on condition only, 
 that the said Potomac Company shall make the river well capable of 
 being navigated in dry seasons, by vessels drawing one foot water, 
 from the said place of collection, near the mouth of the South Branch 
 to and through Payne’s Falls as aforesaid. That the tolls hereinbe¬ 
 fore allowed to be demanded and received at the Great Falls, ' are 
 granted and shall be payable on condition only, that the said Potomac 
 Company shall make the river well capable of being navigated in dry 
 seasons, from Payne’s Falls to the Great Falls, by vessels drawing 
 one foot water, and from the Great Falls to tid° w'ater, and shall, at ' 
 or near the Great Falls, make a cut or canal, twenty-five feet wide, 
 and four feet deep, with sufficient locks, if necessary, each of eighty 
 feet in length, sixteen feet in breadth, and capable of conveying ves¬ 
 sels or rafts drawing four feet water at the least, and shall make, at 
 or near the Little Falls, such canal and locks, if necessary, as will 
 he sufficient and proper to let vessels and rafts aforesaid, into tide 
 water, or render the said river navigable in the natural course. 
 
 i 
 
167 
 
 “ 18. And it is herebij provided and enacted , That, in case the said 
 company shall not begin the said work within one year after the com¬ 
 pany shall be formed, or if the navigation shall not be made and im¬ 
 proved between the Great Falls and Fort Cumberland, in the man¬ 
 ner hereinbefore mentioned, within three years after the said compa¬ 
 ny shall be formed, that then the said company shall not be entitled 
 to any benefit, privilege, or advantage, under this act : And in case 
 the said company shall not complete the navigation through and from 
 the Great Falls to tide water as aforesaid, within ten years after the 
 said company shall be formed, then shall all interest of the said com¬ 
 pany and all preference in their favor, as to the navigation and tolls, 
 at, through, and from, the Great Falls to tide water, be forfeited, and 
 cease. 
 
 “19. And be it enacted, That all commodities of the produce of 
 either of the said States, or of the Western country, which may be 
 carried or transported through the said locks, canals, and river, may 
 be landed, sold, or otherwise disposed of, free from any other duties, 
 impositions, regulations, or restrictions, of any kind, than the like 
 commodities of the produce of the State in which the same may hap¬ 
 pen to be so landed, sold, shipped, or (Jisposed of. 
 
 “21. And be it further enacted , That so much of every act and acts 
 within the purview of this act, shall be, and the same is hereby, re¬ 
 pealed. 99 
 
 An act to amend an act entitled “An act for opening and extending 
 the navigation of the Potomac river—[Passed Dec . 16, 1790.] 
 
 Whereas it has been represented to the present General Assembly, by 
 the President and Directors of the Potomac Company, that the 
 time allowed by law for making and improving the navigation of 
 the Potomac River, between the Great Falls and Fort Cumber¬ 
 land, in the manner therein mentioned, is found not sufficient to 
 perform the work— 
 
 Sec. 2. Be it therefore enacted , That, the further time of three 
 years shall be allowed the said Company for making and improving 
 •the navigation of the said river above the Great Falls. 
 
 Sec. 3, And be it further enacted , That none of the shares not 
 already subscribed for, be hereafter taken up, but on first paying the 
 amount of the previous calls, and interest from the time the calls 
 ought to have been complied with, and that delinquent subscribers 
 shall pay inquest from the time the money called for ought to have 
 been paid, with the actual expense of notice, and that the same shall 
 be recovered w ith, and in like manner, as the principal. 
 
 Sec. 4. And be it further enacted, That the place of collection of 
 tolls shall be at or near Hook’s Falls, instead of being at or near 
 Payne’s, and that one-fourth of the tolls made payable at Payne’s 
 
168 
 
 Falls, shall henceforth be demandable and received at Hook’s Falls, 
 and one-fourth of the tolls payable at the Great Falls, shall be de¬ 
 mandable and received at the Great Falls, and also on goods and 
 produce landed at or near Watts 9 branch. 
 
 Sec. 5. And be it further enacted, That the president and directors 
 of the said Company are hereby empowered to apply so much of the 
 capital subscribed, and tolls as may arise, as they shall judge neces¬ 
 sary towards opening, improving, and extending navigation on the 
 branches of Potomac river, above Seneca. 
 
 Sec. 6. And be it further enacted , That it shall and may be law¬ 
 ful for persons, not citizens of this Commonwealth, to purchase and 
 hold the non-subscribed shares of the said Potomac Company : Pro¬ 
 vided, That the persons so purchasing shall not thereby become citi¬ 
 zens of this Commonwealth. 
 
 An act to amend the act, entitled An act to amend the act entitled “ An, 
 act for opening and extending the navigation of Potomac river." 
 [.Passed November 21, 179,1.] 
 
 Whereas, on application of the President and Directors of the Poto¬ 
 mac Company, an act was passed during the last session of the 
 General Assembly, which, among other things, did grant to the 
 said Company the right to open, extend, and improve the naviga¬ 
 tion of the branches of the Potomac river, above Seneca, which 
 grant was made from an expectation that the said Company would 
 forthwith proceed in improving the navigation of the said branches : 
 
 1 . Be it therefore enacted by the General Assembly , That the said 
 grant shall be forfeited unless the Company aforesaid proceed, within 
 twelve months from the date hereof, in the opening and improving 
 the navigation of the said branches. 
 
 2 . And be it further enacted, That it shall and may be lawful for per¬ 
 sons not citizens of this Commonwealth to purchase and hold the 
 subscribed, as well as the non-subscribed shares of the Potomac Com¬ 
 pany, provided, that the persons so purchasing, shall not thereby be¬ 
 come citizens of this Commonwealth. 
 
 General Assembly, begun and held at the Capitol, in the City of Rich¬ 
 mond, on Monday, the twenty-first day of October , in the year of our 
 Lord one thousand seven hundred and ninety-three.—[Passed Novem¬ 
 ber 23, 1793.] * . • 
 
 1 . Be it enacted, That so much of the act of General Assembly, 
 passed in the year 1787, entitled “ An act giving a more speedy rem¬ 
 edy against delinquent subscribers to the Potomac and James River 
 Companies,” as relates to the Potomac Company, shall be, and is 
 hereby repealed ; and so much of the act of the General Assembly, 
 
entitled “An act for opening and extending,the navigation of Po¬ 
 tomac river,” as directed the sale of the shares of delinquent subscri¬ 
 bers, shall be and remain in full force and effect. 
 
 2 . And be it further enacted , That the time for completing the navi¬ 
 gation of Potomac river, between the Great Falls and the head, shall 
 be, and is hereby, extended until the first day of January, 1795, and 
 that no privilege or advantage granted by law shall be forfeited or 
 lost, in case the navigation aforesaid shall be finished within the time 
 hereby limited, any thing in any act to the contrary thereof notwith¬ 
 standing. 
 
 3 . And be it further enacted , That the several tolls made payable 
 by the act of General Assembly, entitled “ An act for opening and 
 extending the navigation of Potomac river at Payne’s Falls,” shall, 
 instead thereof, be payable at Hook’s Falls* and the tolls by said act 
 made payable at the Great Falls, shall be payable at the Great Falls, 
 and at Watts’ branch, in such proportion as shall be directed by the 
 President and Directors of the Potomac Company: and that the 
 tolls by the said act made payable at the mouth of the South Branch, 
 shall be, and are hereby,, made payable at some convenient place be¬ 
 tween the mouths of Great Cacapeton and Conococheague, to be ap¬ 
 pointed by the President and Directors of the Potomac Company, 
 any thing in any former act or acts of Assembly to the contrary not¬ 
 withstanding : Provided always f that this act and every part thereof 
 shall be, and the same is hereby, suspended, until the Legislature of 
 the State of Maryland shall pass a law or laws to the like effect. 
 
 [By act of Virginia, concerning the General Court of the State, 
 jurisdiction is granted to the General Court to hear and determine 
 motions against delinquent subscribers to Potomac Company. 18th 
 Dec. 1819, Act of Virginia relating to the powers of the Superior 
 Court of the States grants to Circuit Courts jurisdiction to hear and 
 determine motions against sheriffs and other law officers, for refusing 
 to pay moneys due to them and to the Potomac Company and others.] 
 
 An act authorizing the Potomac Company to open the Shenandoah 
 River.—[Passed January 13, 1802.] 
 
 Whereas the extension of the navigation of the river Shenandoah will 
 be of public utility, for which purpose it may be necessary to cut 
 canals and erect locks and other works on both sides of the river, 
 and the Legislature of Virginia be impressed with the importance 
 of the object, and desirous of encouraging so useful an undertaking ; 
 and whereas it is in proof before the Legislature that the endeavors 
 to form a company for that purpose, under the act of Legislature, 
 passed January 23, 1798, have been ineffectual, and the Potomac 
 20 
 
no 
 
 Company having, by their Board of Directors, communicated to 
 the present Legislature their willingness to undertake that impor¬ 
 tant work-— 
 
 2. “ Be it therefore enacted by the General Assembly, That, for and in 
 consideration of the expenses the said company will be at, not only in 
 cutting the said canals, erecting locks, and other works, for opening 
 the falls of the said river, and the north and south branches, to wit : 
 The North Branch, up to the mouth of Smith’s Creek, in the County 
 of Shenandoah, and the South Branch to a place called Carthraes, in 
 the County of Rockingham, where the said South Branch forks, and 
 in improving and extending the navigation thereof—but in maintain¬ 
 ing and keeping the same in repair, the said canals and works, with 
 all their profits shall be, and the same are hereby, vested in the Stock¬ 
 holders of the Potomac Company, their heirs and assigns, forever, 
 as tenants in common, in proportion to the shares held by them re¬ 
 spectively, and the same shall be deemed real estate, and be forever 
 exempt from the payment of any tax, imposition, or assessment what¬ 
 ever ; and the said president and directors shall be entitled to de¬ 
 mand and receive, at such place or places on the said river as they 
 shall think proper, the same tolls which were allowed the Shenandoah 
 Company under the act of General Assembly, passed the 23d day of 
 January, 1798, entiled “ An act for opening and extending the navi¬ 
 gation of the Shenandoah river, but which tolls shall he subject to a 
 reasonable deduction by the Legislature, after the end of seven years 
 from the completion of the said navigation ; and they shall demand 
 the said tolls immediately after they have rendered the mouth of the 
 said river Shenandoah navigable, which tolls may be discharged in 
 dollars and cents and other coin made current by law. 
 
 “ 4. And be it further enacted , That the said river, and the works to 
 be erected thereon in virtue of this act, when completed, shall forever 
 thereafter be esteemed and taken'to be navigable, as a public highway, 
 free for the transportation of all goods, commodities, or produce, 
 whatsoever, on payment of the tolls imposed by this act; and no 
 other toll or tax whatever, for the use of the water of the said river, 
 and the works thereon erected, shall, at any time hereafter, be im¬ 
 posed by the General Assembly of Virginia. 
 
 “ 5. And whereas it is necessary for making the said canals, locks, 
 and other works, that a provision should be made for condemning 
 cpiantity of land for the purpose : Be it enacted , That &c. 
 
 “ 11. And be it further enacted , That if the said president and di¬ 
 rectors shall deem it necessary to increase the capital of the said 
 company, for the purpose of completing and carrying on the said 9 
 works, it shall and may be lawful for them to open books and receive 
 subscriptions therein of one hundred shares in addition to the shares 
 now held by the present Potomac Company; and such subscribers, 
 on the payment of the sum of one hundred and forty-five pounds ster¬ 
 ling each, to the said president and directors or their treasurer, in 
 such proportion and times as they, the said president and directors, 
 
471 
 
 / 
 
 shall appoint, shall henceforth be deemed and considered as members 
 of the said company, and entitled to receive their full dividends and 
 proprortions of the tolls herein mentioned. 
 
 “ 12. This act shall commence and be in force from and after the 
 passing thereof. ” 
 
 Jin act to repeal a part of the act, entitled “ Jin act authorizing the Po¬ 
 tomac Company to open the Shenandoah river—[Passed January 4, 
 
 1803.] 
 
 1. Be it enacted by the General Jlssembly, That so much of the act 
 passed at the last session, entitled « An act authorizing the Potomac 
 Company to open the Shenandoah Riv£r,” as reserves to the Legisla¬ 
 ture the right of reducing, after the expiration of seven years from 
 the completion of the navigation of said river, the tolls by the said 
 act allowed, shall be, and is hereby, repealed. 
 
 2. And the tolls hereby granted by the said act are hereby secured 
 to the Stockholders of the Potomac Company, their heirs and assigns, 
 forever, in the same manner that the tolls on the Potomac have been 
 heretofore secured by the Legislatures of Virginia and Maryland. 
 
 3. Jind be it further enacted , That the term of five years, allowed 
 by the before recited act, for completing the navigation of the Shenan¬ 
 doah river, shall be computed from the time of passing this act 
 
 4. This act shall be in force from the passing thereof. 
 
 Jin act concerning the Potomac Company.—[Passed January, 27, 1803.] 
 
 Whereas it appears, by a memorial from the Directors of the Poto¬ 
 mac Company, that the locks erected at the Great Falls are only 
 twelve feet in breadth, instead of fourteen feet as the law directs : 
 
 2. Be it enacted and declared, That the said locks which have been 
 already erected and completed, shall be deemed and taken as sufficient 
 and effectual, as if the same had been constructed and erected of the 
 breadth of fourteen feet : Provided always, That nothing herein con¬ 
 tained shall be construed to authorize the erecting in future any lock 
 or locks, for the improvement of the navigation of the said river, of 
 any dimensions less than eighty feet in length and twelve feet in 
 breadth : Provided, also, That every lock which shall hereafter be 
 repaired or erected, shall be repaired or erected of stone, or such ma¬ 
 terials as a general meeting of the proprietors shall deem most con¬ 
 ducive to the public interest and convenience. 
 
 3. And, whereas, it appears, by the said memorial, that doubts 
 have arisen relative to the true construction of the seventeenth 
 section of the act entitled “ An act for opening and extending 
 the navigation of the Potomac river,” in the specification therein 
 mentioned and expressed of the seasons in which the said river shall 
 
be made well capable of being navigated: Be it therefore enacted and 
 declared , That, by the words “ dry seasons,” as used in the said 
 section, 4 were and are to be intended and understood, all seasons, so 
 far as relates to the navigation of the said river from Fort Cumber¬ 
 land to tide water. 
 
 4. And be it enacted, That Tobias Lear, Stevens Thompson Mason, 
 Lawrence A Washington, Hugh Holmes, Nicholas Fitzhugh, Os¬ 
 borne Sprigg, and Edward McCarty, shall and are hereby appointed 
 Commissioners to explore and review the said river at any time be¬ 
 fore the first day of November, when the water is in such a state as to 
 enable them to judge most accurately of the work which has been 
 done by said Company, and they shall report to the next General 
 Assembly the manner in which the said work is done, the depth of 
 water in the shallowest places where boats generally pass, and all 
 other necessary information that can be procured relative to the sub¬ 
 ject, together with their own opinions thereon. 
 
 5. And be it f urther enacted , That the said Potomac Company are 
 hereby authorized and empowered to employ from the State of Mary¬ 
 land, slaves, for the purpose of further improving the navigation of 
 the said river, and that the slaves so employed shall not be entitled to 
 their freedom in consequence of such removal from Maryland, any 
 law to the contrary notwithstanding. 
 
 6. Be it enacted , That the further time of three years, to be com¬ 
 puted from the expiration of the term already given, shall be, and is 
 hereby, allowed the Potomac Company, to complete the navigation of 
 the said river. 
 
 7. Provided , That a majority of the said Commissioners shall be 
 sufficient to execute the duties assigned them by this act, who shall be 
 paid for their services by the Potomac Company. 
 
 8. This act shall commence and be in force from and after the pass¬ 
 ing thereof. 
 
 An act concerning the Potomac Company.—[Passed 5th January, 1808.] 
 
 Be it enacted by the General Assembly , That the President and Di¬ 
 rectors of the Potomac Company shali be, and they are hereby, al¬ 
 lowed the further term of three years, from the expiration of the time 
 heretofore allowed by law, to complete the navigation of the Shenan¬ 
 doah river. 
 
 2. This act shall be in force from the passing thereof. 
 
 An act concerning the Potomac Company .—[Passed 11 th January y 1811.] 
 
 Be it enacted by the General Assembly , That the further term of 
 three years, to be computed from the expiration of the term heretofore 
 
173 
 
 granted, shall be, arid the same is hereby, allowed to the Potomac 
 Company, to complete the navigation of the Potomac and Shenandoah 
 rivers. 
 
 2. This act shall be in force from the passing thereof. 
 
 AN ACT OF THE STATE OF VIRGINIA. 
 
 Extracts from “An act incorporating a New Company , to open and 
 extend the navigation of Shenandoah River and its Branches , and 
 for other purposes*—[Passed February 3, 1814.] 
 
 “ Whereas the extension of the navigation of Shenandoah river will be 
 of public utility, and the Potomac Company, which has failed to 
 complete the said navigation, within the time limited by their charter 
 has, on certain conditions, agreed to relinquish any further claim 
 thereto : And whereas it may be necessary to cut canals and erect 
 locks and other works on both sides of the river ; and the General 
 Assembly, impressed with the importance of the object, are desir¬ 
 ous of encouraging so useful an undertaking 
 
 “ 19. And be it further enacted , That the President and Directors of 
 the said company shall pay and reimburse to the Potomac Company 
 the value of the locks and other works done and erected in the She¬ 
 nandoah river and its branches, by the said Company ; to be ascer¬ 
 tained and fixed by two or more reputable and disinterested persons, 
 to be appointed by the Directors of the respective Companies ; which 
 valuation shall be paid in ten equal annual instalments, with legal in¬ 
 terest, commencing from the first day of January, one thousand eight 
 hundred and fifteen : Provided however, That, if the tolls herein allow¬ 
 ed, shall not, in any year amount to the instalment payable in that 
 year, the balance shall not be required to be paid in that year, but the 
 payment thereof shall be postponed, until it can be paid out of subse¬ 
 quent tolls.” 
 
 “21. And be it further enacted , That if the said Company shall not 
 be formed on or before the first day of December next, or the work 
 commenced within eighteen months from and after the formation of 
 the said Company; or if the navigation shall not be made and im¬ 
 proved as aforesaid, in the manner hereinbefore mentioned, within 
 five years after the said Company shall be established, that then the 
 said Company shall not be entitled to any benefit, privilege, or advan¬ 
 tage, under this act; and the right of the Commonwealth to extend to 
 the Potomac Company, upon just and equitable conditions, a further 
 time to open and improve the navigation of said river, or otherwise 
 to dispose of the subject, in such-manner as to them may seem wise 
 and just, shall thereupon revert and be complete.” 
 
 V 
 
174 
 
 AN ACT OF THE STATE OF VIRGINIA. 
 
 6 ‘ An act extending the time of completing subscriptions , and organizing 
 the New Shenandoah Company , and for other purposes.—[Passed 9 th 
 November , 1814.] 
 
 “ Be it enacted by the General Assembly , That the period of six months 
 to be computed from the termination of the present war between the 
 United States and Great Britain, be, and the same is hereby allow¬ 
 ed to the New Shenandoah Company, to complete the subscriptions 
 and organize the said company, instead of the time prescribed by the 
 act incorporating the same. And all the interest arising under any 
 contract or contracts between the said Company and the Potomac 
 Company shall cease to accrue, until the said Shenandoah Company 
 shall be organized and established. 
 
 “ 2. And be it further enacted , Thatithe term of five years, commenc¬ 
 ing from the time the said Company shall he organized and estab¬ 
 lished, be, and is hereby, allowed them, to open and extend the navi¬ 
 gation of the Shenandoah and its branches.® 
 
 ‘<3. This act shall be in force from the passing thereof.” 
 
 [By act of the State of Virginia, 2d January, 1824, the New Shen¬ 
 andoah Company are allowed five years, to be computed from 1st Au¬ 
 gust, 1824,'to comply with the conditions of the act incorporating 
 said Company.] 
 
 Memorandum of an agreement made between the President and Direc¬ 
 tors of the New Shenandoah Company, on the one part, and the 
 Potomac Company, by Jonah Thompson, their agent, on the other 
 part— 
 
 Witnesseth : That, for and in consideration of the conveyance of 
 the canals cut, the locks erected and all and every of the rights, claims, 
 and interests, of the Potomac Company, heretofore cut, erected, and 
 claimed, by the said Potomac Company, on the Shenandoah river, 
 hereby conveyed and ceded to the New Shenandoah Company by the 
 said Potomac Company, the said New Shenandoah Company do agree 
 to pay to the said Potomac Company the sum of fifteen thousand dol¬ 
 lars, to be taken in shares of fifty dollars each, of the stock of the 
 New Shenandoah Company, to be redeemable by the last said Com¬ 
 pany, agreeably to a resolution of the Potomac Company, passed in 
 August last. Ai^d further, that the Potomac Company do bind them¬ 
 selves to secure, by indisputable title, their rights to the said Canals, 
 locks, &c. clear of the adverse claims of the United States and indi¬ 
 viduals, to the New Shenandoah Company, especially of the United 
 States’ Armory, Wilson’s, Grove’s, and Craighill’s Mills. 
 
 It is understood that the foregoing agreement is subject to the ra¬ 
 tification of the several Companies, at their General Meeting. Tlie 
 New Shenandoah Company being about to have their General Meet¬ 
 ing on the fifteenth proximo, and the Potomac Company to be called 
 
1T5 
 
 into General Meeting, as soon as possible; unless the President and 
 Directors ol' the Potomac Company shall take upon themselves the 
 responsibility of the said ratification. 
 
 Given this 24th day of October, 1815. 
 
 CHS. STUART, Pres, of New Sh. Co. 
 DAVID GOLLADY, 
 
 GEO. HUSTON, 
 
 CHAS. LEWIS. 
 
 JONAH THOMPSON, 
 
 for the Potomac Company. 
 
 At a meeting of the Stockholders of the Potomac Company, on the 
 5th August, 1816, the following resolution was entered into : 
 
 Resolved, That this, meeting do ratify the agreement entered into 
 with the New Shenandoah Company, by Jonah Thompson, in behalf 
 of the President and Directors of the Potomac Company, on the 24th 
 October, 1815. It being, however, expressly understood, that the 
 Potomac Company will, in no way, be bound to guaranty against the 
 adverse claims of the United States, to any canals, or locks, or other 
 matters ; and that they will merely convey their rights to such canals, 
 locks, &c. and place the Shenandoah Company, as to those, in their 
 shoes : and, further, that the President and Directors of the Potomac 
 Company, have drawn, by some competent person, an instrument of 
 writing, fully expressing the intention of the parties, and have the 
 same legally executed and recorded. 
 
 Jin act allowing further time to the Potomac Company to complete the 
 navigation of the Potomac.—[Passed 18 th of February, 1817.] 
 
 Be it enacted by the General Assembly, That the further time of 
 three years, to be computed from the 1st day of January, one thou¬ 
 sand eight hundred and seventeen, be allowed the Potomac Company 
 to complete the navigation of the river Potomac. 
 
 2. This act shall be in force from the passing thereof. 
 
 Resolution concerning the upper navigation of Potomac, and a commu¬ 
 nication between the Ohio , Rappahannock and Potomac Rivers. 
 
 [Agreed to by both Houses of the Legislature of Virginia, January 8, 1820.] 
 
 Resolved by the General Assembly, That the Board of Public Works 
 he, and they arc hereby, requested to inquire into the expediency of 
 directing their principal engineer to examine the waters of the Poto¬ 
 mac, above the upper line of the District of Columbia, with a view to 
 ascertain and report upon the most effectual means of improving the 
 
 i 
 
176 
 
 'navigation of the same; and to explore the country between the Po¬ 
 tomac and the Ohio, on the one side, and the Potomac and the Rappa¬ 
 hannock on the other, with a view to ascertain and report upon the 
 practicability of effecting a communication by canals between the 
 three rivers. 
 
 An act concerning the Fotomac Company. 
 
 [Passed January 29,1821.) 
 
 « Whereas it is represented to the General Assembly that the Potomac 
 Company have failed to comply with the terms and conditions of 
 the acts of the Legislatures of the States of Virginia and Mary- 
 land, incorporating the said Company, for the purpose of opening 
 and extending the navigation of the river Potomac and its branches; 
 and whereas it is the interest of this Commonwealth that such 
 measures should be conjointly adopted by the Legislatures of the 
 said States, as shall ensure to the people thereof the attainment of 
 the important objects for which the charter of the said Company 
 was granted : 
 
 “ Be it therefore enacted by the General Assembly, That so soon as the 
 Legislature of Maryland shall pass an act corresponding with this 
 act in its provisions, the Governor of this Commonwealth, by and 
 with the advice of the Council of State, shall appoint two Commis¬ 
 sioners to meet such Commissioners as may be appointed on the part 
 of the State of Maryland, whose duty it shall be to examine into and 
 report the state of the navigation of the said river and its branches, 
 and whether the same has been perfected and completed according to 
 the terms and conditions of the acts of incorporation aforesaid. iVnd 
 the said Commissioners so to be appointed on the part of this State, 
 are further directed to inquire into, and so far as they shall be enabled 
 to ascertain the same, to report the situation and condition of the af¬ 
 fairs of the said Company; the amount and character of their debts, 
 and of their receipts and expenditures ; and whether the present re¬ 
 sources of the Company afford a reasonable expectation of their effect¬ 
 ing in a short time the objects of their incorporation. And if it shall 
 appear to the said Commissioners that the terms and conditions of the 
 acts of incorporation aforesaid have not been complied with, or that 
 the funds and resources of the said Company are so far exhausted as 
 to afford no reasonable prospect of attaining in a short time the ob¬ 
 jects of the said incorporation, then it shall be the duty of the said 
 Commissioners on the part of this State, to advise and consult with 
 the Commissioners on the part of the State of Maryland as to the 
 measures most advisable to be recommended to, and conjointly adopt¬ 
 ed by, the said States, either for giving aid to the said Company in 
 the further prosecution of the said work, or for the institution of a 
 
177 
 
 prosecution against the President and Directors of the said Company, 
 for the purpose of annulling and vacating the charter of the said cor¬ 
 poration. 
 
 “ 2. Be it further enacted , That the Commissioners aforesaid shall 
 report their proceedings under this act, to the Governor of this Com¬ 
 monwealth, as soon as practicable, after they shall have executed the 
 duties prescribed to them by this act. 
 
 “ 3. Be it further enacted, That, if the said Commissioners shall 
 deem it necessary to have the aid of the civil engineer, he shall attend 
 the said Commissioners in the execution of the duties prescribed by 
 this act, and shall give to them his advice and assistance as the civil 
 engineer of the State, and assist them in their report. 
 
 “ 4. Be it further enacted , That the Governor of this Common¬ 
 wealth communicate the passage of this act, as soon as possible, to 
 the Governor of Maryland, with a request that it may be laid before 
 the legislative body of that State as soon as practicable. 
 
 “ 5. Be it further enacted , That it shall be the duty of the Govern¬ 
 or, and he is hereby required, to notify, within convenient time, to each 
 Commissioner, the fact of his appointment; and it shall be the duty of 
 the Board of Public Works to notify to their civil engineer the duties 
 hereby imposed on him, to the intent that they may be severally and 
 strictly performed. 
 
 “ 6. Be it further enacted , That each Commissioner appointed un¬ 
 der this act, on the part of this State, shall receive four dollars per 
 day for the time he shall be necessarily employed in the performance 
 of the duties prescribed by this act, to be certified by the said Com¬ 
 missioners ; and that their chain carriers, and others to be employed 
 by them, shall be entitled to receive such compensation as the Commis¬ 
 sioners shall certify to be just and reasonable; and the cost and 
 charges hereby authorized, shall be paid out of the fund for internal 
 improvement, under the superintendency of the Board of Public Works. 
 Ajul the said Commissioners are hereby empowered to obtain, in such 
 manner as they may think best, boats, if necessary, for the purpose of 
 more effectually carrying this act into operation; to be paid for as 
 before directed.” 
 
 EXTRACTS FROM ACTS OF THE STATE OF MARYLAND, RELATIVE TO 
 THE POTOMAC COMPANY. 
 
 u Jln act for establishing a company for opening and extending the na¬ 
 vigation of the river Potomac.—[Passed November Session , 1784..] 
 
 “ Whereas the extension of navigation of Potomac river, from tide 
 water to the highest place practicable on the north branch, will be of 
 great public utility, and many persons are willing to subscribe large 
 sums of money to effect so Laudable and beneficial a work, and it is 
 just and proper that they, tljeir heirs, and assigns, should lie einpow- 
 21 
 
118 
 
 < 
 
 ered to receive reasonable tolls forever, in satisfaction for the money 
 advanced by them in carrying the work into execution, and the risk 
 they run : And whereas it may be necessary to cut canals and erect 
 locks and other works on both sides of the river, and the Legislatures 
 of Virginia and Maryland, impressed with the importance of the ob¬ 
 ject, are desirous of encouraging so useful an undertaking : Therefore, 
 
 “ 6. And, to continue the succession of the said President and Direc¬ 
 tors, and to keep up the same number. Be it enacted , That, from time 
 to time, upon the expiration of the said term for which the said Pre¬ 
 sident and Directors were appointed, the proprietors of the said Com¬ 
 pany, at the next general meeting, shall either continue the said Pre¬ 
 sident and Directors, or any of them, or choose others in their stead; 
 and in case of the death, removal, resignation, or incapacity, of the 
 President, or any of the said Directors, may, and shall, in manner 
 aforesaid, elect any other person or persons to be President and Di¬ 
 rectors, in the room of him, or them, so dying, removing, or resign¬ 
 ing, and may, at any of their general meetings, remove the President, 
 or any of the directors, and appoint others for and during the remain¬ 
 der of the term for which such person or persons were at first to have 
 acted. 
 
 “ 7. And be it enacted, That every President and Director, before 
 he acts as such, shall take an oath or affirmation for the due execution 
 of his office. 
 
 « 8. And be it enacted , That the presence of proprietors, having one 
 hundred shares at the least, shall be necessary to constitute a general 
 meeting, and that there be a general meeting of proprietors on the 
 first Monday of August in every year, at such convenient town as 
 shall be, from time to time, appointed by the said general meeting; 
 but if a sufficient number should not attend on that day, the proprie¬ 
 tors who do attend may adjourn such meeting from day to day till a 
 general meeting of proprietors shall be had, which may be continued 
 from day to day until the business of the company is finished; to 
 which meeting the President and Directors shall make report, and 
 render distinct and just accounts of all their proceedings, and on find¬ 
 ing them fairly and justly stated, the proprietors then present, or a 
 majority of them, shall give a certificate thereof, a duplicate of which 
 shall be entered on the said company’s books ; and at such yearly gene¬ 
 ral meetings, after leaving in the hands of the Treasurer such sum as 
 the proprietors, or a majority of them, shall judge necessary for re¬ 
 pairs and contingent charges, an equal dividend of all the nett pro¬ 
 fits arising from the tolls hereby granted, shall be ordered and made 
 to and among all the proprietors of the said company, in proportion 
 to their several shares; and upon any emergency, in the interval be¬ 
 tween the said yearly meetings, the said President, or a majority of 
 the said Directors, may appoint a general meeting of the proprietors 
 of the said company, at any convenient town, giving at least one 
 month’s previous notice in the Maryland and Virginia Gazettes, which 
 meeting may be adjourned and continued as aforesaid. 
 
179 
 
 •« itX. And be it enacted , That the said river, and the works to be 
 erected thereon, in virtue of this act, when completed, shall forever 
 thereafter be esteemed and taken to be navigable as a public highway, 
 free for the transportation of all goods, commodities, or produce, what¬ 
 soever, on payment of tolls imposed by this act; and no other toll 
 or tax whatever, for the use of the water of the said river, and the 
 works thereon erected, shall at any time hereafter be imposed by both 
 or either of the said States, jsubject, nevertheless, to such regulations 
 as the Legislatures of the said States may concur in, to prevent the 
 importation of prohibited goods, or to prevent fraud in evading the 
 payment of duties imposed in both or either of the said States, on 
 goods imported into either of them. 
 
 *11. And, whereas it is necessary for the making the said canal, 
 locks, and other works, that a provision should be made for condemn¬ 
 ing a quantity of land for the purpose: Be it enacted , That it shall 
 and may be lawful for the said President and Directors, or a majority 
 of them, to agree with the owners of any land through which the said 
 canal is intended to pass, for the purchase thereof; and in case of dis¬ 
 agreement, or in case the owner thereof shall be a feme covert, under 
 age, non compos, or out of the State, on application to any two jus¬ 
 tices of the country in which such land shall lie, the said justices shall 
 issue their warrant, under their hands, to the sheriff of their county, 
 to summon a jury of twenty-four inhabitants of his county, of proper¬ 
 ty and reputation, not related to tiie parties, nor in any manner in¬ 
 terested, to meet on the land to be valued, at a day to be expressed 
 in the warrant, not less than ten, nor more than twenty days there¬ 
 after^ and the sheriff, upon receiving the said warrant, shall forth¬ 
 with summon the said jury, and, when met, shall administer an oath 
 or affirmation to every juryman that shall appear, that he will faith¬ 
 fully, justly, and impartially, value the land, (not exceeding in any 
 case the width of two hundred feet,) and all damages the owner 
 thereof shall sustain hy the cutting the canal through such land, ac¬ 
 cording to the best of his skill and judgment, and that in such valua¬ 
 tion, he will not spare any person for favor or affection, nor any per¬ 
 son grieve for hatred, malice, or ill-will: and the inquisition there¬ 
 upon taken shall be signed by the sheriff and some twelve or more of 
 the jury, and returned by the sheriff to the clerk of his county, to be 
 by him recorded: and upon every such valuation, the jury is hereby 
 directed to describe and ascertain the bounds of the land by them 
 valued, and their valuation shall be conclusive on all persons, and 
 shall he paid by the said President and Directors to the owner of the 
 land or his legal representative; and, on payment thereof, the said 
 company shall be seized in fee of such land, as if conveyed by the 
 owner to them and their successors hy legal conveyance; Provided, 
 nevertheless, that if any further damage shall arise to any proprietor 
 of land in consequence of opening such canal, or in erecting such 
 works, than had been before considered and valued, it shall and may 
 be lawful for such proprietor, as often as any such new damage shall 
 happen, by application to, and a warrant from, any two justices of the 
 
180 
 
 county where the lands lie, to have such further damage valued by a 
 jury in like manner, and to receive and recover the same of the said 
 President and Directors; but nothing herein shall be taken or con¬ 
 strued to entitle the proprietors of any such lands to recover com¬ 
 pensation for any damages which may happen to any mills, forges, 
 or other works or improvements, which shall be begun or erected by 
 such proprietor after such first valuation, unless the same damage is 
 wilfully or maliciously done by the said President and Directors, or 
 some person by their authority. 
 
 “ 14. And be it enacted , That it shall and may be lawful for every of 
 the said proprietors to tr ansfer his share or shares, by deed, executed 
 before two witnesses, and registered, after proof of the execution 
 thereof, in the said company’s books, and not otherwise, except by 
 devise, which devise shall also be exhibited to the President and Direc¬ 
 tors, and registered in the company’s books,* before the devisee or de¬ 
 visees shall be entitled to draw any part of the profits from the said 
 tolls; Provided , that no transfer whatsoever shall be made, except for 
 one or more whole share or shares, and not for part of such shares ; 
 and that no share shall, at any time, be sold, conveyed, transferred, 
 or held in trust, for the use and benefit, or in the name of another, 
 whereby the said President and Directors, or proprietors of the said 
 company, or any of them, shall or may be challenged, or made to an¬ 
 swer concerning any such trust, but that every person appearing as 
 aforesaid to be a proprietor, shall, as to the others of the company, be 
 to every intent takc^i absolutely as such, but as between any trustee 
 and the person for whose benefit any trust shall be created, the com¬ 
 mon remedy may be pursued. 
 
 “ 16. And be it enacted , That if the said capital, and the other aids 
 already granted by this act, shall prove insufficient, it shall and may 
 be lawful for the said company, from time to time, to increase the said 
 capital, by the addition of so many more whole shares as shall be 
 judged necessary by the said proprietors, or a majority of them, hold¬ 
 ing at least three hundred shares, present at any general meeting of 
 the said company ; and the said President and Directors, or a majority 
 of them, are hereby empowered and required, after giving at least one 
 month’s previous notice thereof, in the Maryland and Virginia Ga¬ 
 zettes, to open hooks in the beforementioned places for receiving and 
 entering such additional subscriptions, in which the proprietors of 
 the said company, for the time being, shall, and are hereby declared 
 to have the preference of all others, for the first thirty days after the 
 said books shall be opened as aforesaid, of taking and subscribing for 
 so many whole shares as any of them shall choose; and the said Pre¬ 
 sident and Directors are hereby required to observe in all other re¬ 
 spects the same rules therein as are by this act prescribed for receiv¬ 
 ing and adjusting the first subscriptions, and in like manner to return,, 
 under the hands of any three or more of them, an exact list of such 
 additional subscribers, with the sums by them respectively subscribed, 
 in the general courts as aforesaid, to be there recorded ; and all pro¬ 
 prietors of such additional shares, shall, and are hereby declared to- 
 be, from thenceforward, incorporated into the said company* 
 
181 
 
 “20. And, to encourage and promote the said undertaking, Be it eit » 
 acted , That if the State of Virginia shall subscribe fifty shares, in 
 such case the Treasurer of the Western Shore be authorized arid di¬ 
 rected to subscribe, in behalf of tins State, a like number of shares, 
 and the money necessary to be paid in consequence of such subscrip¬ 
 tion, shall be paid by this State; and the Treasurer of the Western 
 Shore, for the time being, shall have a right to vote according to such 
 shares, in person, or by pro^ appointed by him ; and the said Trea¬ 
 surer shall receive the proportion*of the tolls aforesaid, which shall, 
 from time to time, be due to the State for the shares aforesaid. 
 
 “21. This act, and every part thereof, to be of no effect, unless an 
 act shall be passed by the Legislature of Virginia upon similar 
 principles.” 
 
 —•— 
 
 A supplement to the act , entitled “An act for establishing a company for 
 opening and extending the navigation of the river Potomac. —[Pass¬ 
 ed at November session , 1785.] 
 
 “Whereas the President and Directors of the Potomac Company, 
 by their humble petition to this General Assembly, and the Gene¬ 
 ral Assembly of the Commonwealth of Virginia, on behalf of the 
 said company, have set forth that, in pursuance of the acts of As¬ 
 sembly of the Commonwealth of Virginia and this State, entitled 
 An act for establishing a company for opening and extending tht 
 navigation of the river Potomac, they purpose to make a canal 
 on one level, to be supplied by the current of the river from a lit¬ 
 tle above the Great Falls of Potomac, to a convenient place be¬ 
 low tttose Falls, where they design to effect a communication with 
 the bed of the river by connected locks; and that they are under 
 the strongest impressions, if any canal and locks should be found 
 necessary or useful at the Little Falls of the said river, that 
 another such cut, on one level, and a waste of the whole fall, by a 
 set of locks at tide water, will be preferable there, on every ac¬ 
 count; and that, as the depth of water in such canals will be in¬ 
 creased on the rise of the water in the river, so as to permit an 
 easy passage for all such boats and rafts as can pass in tho river, 
 even less than two feet depth of water in the said canals, in dry 
 seasons, with the certain necessary increase on the rise of the 
 river, will he fully sufficient, instead of the four feet required by 
 the said acts, to answer all useful purposes; and, that cutting the 
 said canals four feet below the level of the water in dry seasons, 
 will very greatly and uselessly enhance the expense of the canals, 
 occasion considerable delay in the work, and render it, in a degree, 
 less secure : and have therefore prayed, that acts of both Assem¬ 
 blies may pass, making it necessary that such canals contain two 
 only, instead of the four feet, required by the said acts : or, that, 
 if the level should be broke by locks placed apart from each other, 
 that the first level may necessarily contain only two feet depth, 
 
182 
 
 and the other or rest four : all which suggestions appearing to this 
 General Assembly to be true, and the prayer of the said petition 
 to be reasonable. 
 
 “ 1. Be it enacted by the General Assembly of Maryland , That any 
 canal which shall be cut or made on one level by the Potomac 
 Company, at the Great or Little Falls of Potomac river, supplied 
 by the current of that river, containing two feet depth of water at 
 the least, in dry seasons, and communicating again with the river, by 
 locks, if necessary, the spaces between tbe locks, if they should be 
 placed distant from each other, containing four feet depth of water, 
 shall be equally available, to every intent and purpose; and the said 
 company shall be entitled to the same tolls, and shall have all the 
 rights whatsoever, as if the wholefcof such canals had been made to 
 contain four feet depth of water, agreeable to the directions of the 
 said acts ; any thing in the said acts to the contrary notwithstand¬ 
 ing. 
 
 *•3. This act to take place as soon as a similar law shall be passed 
 by the Legislature of the Commonwealth of Virginia.” 
 
 A second supplement to the Act for establishing a company for opening 
 and extending the navigation of the river Potomac.—[Passed No¬ 
 vember session , 1786.] 
 
 « Whereas the two last Summers have been so unfavorable to the work 
 of making and improving the navigation above tbe Great Falls in 
 tbe Potomac river, that the same cannot probably be perfected 
 within the three years limited and allowed by the act for establish¬ 
 ing a company for opening and extending the navigation of the 
 river Potomac: Therefore, 
 
 “ 2. Be it enacted by the General Assembly of Maryland , That the 
 said Potomac Company shall have, and bo allowed, until the seven¬ 
 teenth day of November, one thousand seven hundred and ninety, for 
 making and improving the navigation between the Great Falls and 
 Fort Cumberland; and that, on the same being done, in the manner 
 prescribed by the said act, before the said seventeenth day of Novcm- 
 ber, the said company shall be entitled to all tolls, profits, and ad 
 vantages, as if the same were done within the three years allowed 
 by the said act, any thing contained in the said act to the contrary 
 notwithstanding. 
 
 « 3. This act to take place as soon as a similar law shall be passed 
 by the Legislature of the Commonwealth of Virginia.” 
 
I 
 
 183 
 
 J1 further supplement to the act for establishing a company for opening 
 and extending the navigation of the river Fotomac.—[Passed No¬ 
 vember Session 9 1790.] 
 
 Whereas the President and Directors of the Potomac Company, by 
 their humble petition to this General Assembly, and the General 
 Assembly of the Commonwealth of Virginia, on behalf of the said 
 company, for the facts and reasons therein set forth, have pray¬ 
 ed, that acts of the said Assemblies may pass, lengthening the time 
 for making and improving the navigation above the Great Falls of 
 the said river ; that none of the forty-six shares not already sub¬ 
 scribed for be taken up but on first paying the full amount of the 
 previous calls, and interest from the time the calls ought to have 
 been complied with ; compelling delinquent subscribers to pay in¬ 
 terest from the time the money ought to have been paid, with the 
 actual expense of notice, and that the same may be recovered with, 
 and in like manner, as the principal ; enabling foreigners to pur¬ 
 chase, subscribe for, and hold shares ; changing the place of col¬ 
 lection of tolls at or near Hook’s Falls, instead of at or near 
 Payne’s Falls; allowing one third, or such other proportion as the 
 said Assemblies might think reasonable, of the tolls payable at the 
 Great Falls, on the navigation being completed at and through the 
 Falls, and thence to tide water, to be henceforth demandable and 
 received at the Great Falls, and, also, at or near the mouth of 
 Watts’s Branch, on goods, commodities, or produce, landed at the 
 Great Falls, or at or near the mouth of Watts’ Branch, respec¬ 
 tively ; and empowering the President and Directors to apply any 
 part of the capital of the said company, and, also, the tolls, as they 
 may arise, in opening, improving, and extending the navigation 
 on the branches of the said river above Seneca ; which being 
 thought reasonable— 
 
 2. Be it enacted by the General Assembly of Maryland , That the said 
 Potomac Company have, and be allowed, until the first day of Janu¬ 
 ary, one thousand seven hundred and ninety-five, for making and 
 improving the navigation between the Great Falls and Fort Cumber¬ 
 land, . and on the same being, done in the manner prescribed by the 
 original act, shall be entitled to all tolls, profits, and advantages, as 
 if the same was done within the three years allowed by the same act. 
 
 “ 3. And be it enacted , That no share in the said company, not al¬ 
 ready subscribed for, shall be taken up or filled, but on first paying 
 the full amount of all previous calls, with interest from the time the 
 calls ought to have been complied with ; and that delinquent subscri¬ 
 bers and holders of shares shall pay interest from the time the money 
 ought to have been paid by them respectively, on any calls made, or 
 to be made, together with the actual expense incurred by the compa¬ 
 ny on serving notice on which to ground a motion for judgment 
 against any such delinquent; and that the interest shall be recover¬ 
 ed with, and in the same manner, as the principal, and the expense 
 of notice shall be taxed with the other costs. 
 
184 
 
 “ 4. And be it enacted , That foreigners shall be and are hereby en¬ 
 abled to subscribe for, purchase, and hold shares in the said company. 
 
 «‘5. And be it enacted , That the tolls which were granted to be 
 demanded and received at or near Payne’s Falls, may be demanded, 
 collected, and received, at or near Hook’s Falls, in the same manner 
 as they might have been collected and received at or near Payne’s 
 Falls aforesaid, and in the stead thereof; and that one third part of 
 such tolls as would be payable at the Great Falls on the navigation 
 being completed at and through those Falls, and thence to tide water, 
 may henceforth, until the whole shall become payable, be demanded, 
 collected, and received, at the Great Falls, and, also, at some con¬ 
 venient place, at or near the mouth of Watts’s Branch, on all goods, 
 commodities, and produce, landed at the Great Falls, or at or near 
 the mouth of Watts’s Branch, respectively, and the same mode may 
 be pursued for compelling payment thereof, as may be lawfully used 
 to compel payment of other tolls to the said company. 
 
 “ 6. And be it enacted , That the President and Directors of the said 
 company for the time being may, from time to time, apply any part 
 of the capital stock of the said company, and, also, the tolls as they 
 may arise, in opening, improving, and extending, the navigation of 
 the branches of the said river above Seneca: Provided , that no such 
 application shall be made until the main river, from tide water, is 
 cleared to Fort Cumberland. 
 
 “ 7. This act to take place, and be in force, on a similar act there¬ 
 to being passed by the General. Assembly of Virginia, and not other¬ 
 wise. 
 
 An act to repeal part of an act , entitled a further supplement to the act 
 for establishing a company for opening and extending the navigation 
 of the river Potomac.—[Passed April Session, 1792.] 
 
 Be it enacted by the General Assembly of Maryland , That the pro¬ 
 viso at the end of the sixth section of the said act, in the following 
 words: “ Provided, that no such application shall be made, until 
 the main river, from tide water, is cleared to Fort Cumberland,” 
 be, and the same is hereby, repealed. 
 
 An act relating to the Potomac Company , and the navigation of the 
 Potomac river.—[Passed at November Session, 1794.] 
 
 Whereas a variety of unforeseen difficulties have occurred in the 
 opening of the Potomac river, and have unavoidably delayed the 
 same being rendered navigable: and whereas it is but reasonable 
 and just that those who have advanced such large sums of money 
 in the prosecution of a work of great public and national impor- 
 . tance, and have so nearly effected the same, should have a further 
 reasonable time for the completion thereof: Therefore— 
 
185 
 
 2. Be it enacted by the General Assembly of Maryland , That so 
 much of an act of the General Assembly, passed at November ses¬ 
 sion, seventeen hundred and eighty-seven, entitled “ An act giving 
 a more speedy remedy against delinquent subscribers to the Potomac 
 Company,’’ shall be, and the same is hereby, repealed; and so much 
 of the act of Assembly, entitled " An act for establishing a company 
 for opening and extending the navigation of the river Potomac,” as 
 directed the sale of the shares of delinquent subscribers, shall be and 
 remain in full force and effect. 
 
 3. And be it further enacted , That the time for completing the na¬ 
 vigation of the Potomac river be, and is hereby, further extended un¬ 
 til the first day of January, seventeen hundred and ninety-eight; and 
 that no privilege or advantage granted by law, shall be forfeited or 
 lost, in case the navigation aforesaid shall be finished within the time 
 hereby limited ; any thing in any act to the contrary notwithstand¬ 
 ing. 
 
 4. And be it further enacted , That the several tolls made payable 
 by the act of the General Assembly, entitled “ An act for establish¬ 
 ing a company fpr opening and extending the navigation of the river 
 Potomac,” at Payne’s Falls, shall, instead thereof, be payable at 
 Hook’s Falls; and the tolls by said act made payable at the Great 
 Falls, shall be made payable at the Great Falls and at Watts’s 
 Branch, in such proportion as shall be directed by the President and 
 Directors of the Potomac Company ; and that the tolls by said act 
 made payable at the mouth of the South Branch, shall be, and are 
 hereby, made payable at some convenient place between the mouths 
 of Great Cacapeton and Conococheaguq, to be appointed by the Pre¬ 
 sident and Directors of the Potomac Company ; any thing in any for¬ 
 mer act or acts of Assembly to the contrary notwithstanding. ' 
 
 An act for enlarging the capital of this State in the Potomac Com¬ 
 pany.—[Passed November Session , 1795.] 
 
 1. Be it enacted by the General Assembly of Maryland, That the 
 Treasurer of the Western Shore of this State be, and he is hereby, 
 authorized and directed to subscribe, in behalf of this State, forty 
 shares in the augmented capital of the Potomac Company, and to 
 pay the sum of five hundred and seventy-seven dollars and seventy- 
 eight cents on each of said shares ; and the said Treasurer shall re¬ 
 ceive the proportion of tolls which shall, from time to time, be due 
 to the State for the said shares; and the said Treasurer shall have a 
 right to vote for said shares in person, or by proxy appointed by him. 
 
 2. And be it enacted, That the Treasurer shall not subscribe for 
 any 9hare in the said Company, until the President thereof shall no¬ 
 tify to him, in writing, that the whole of the residue of the said 
 shares are subscribed for; and the payment of the shares subscribed 
 
 22 
 
186 
 
 for by the Treasurer, shall be made at the times, and in the propor¬ 
 tion, required of the individual stockholders in the said augmented 
 capital. 
 
 A supplement to the act for enlarging the capital of this State in the 
 Potomac Company.—[_Passed November Session , 1795.] 
 
 Whereas, by an act, entitled An act for enlarging the capital of this 
 State in the Potomac Company, passed at this present session of 
 Assembly, the President and Directors of the Company for open¬ 
 ing and extending the navigation of the river Potomac have aug¬ 
 mented the capital of said Company to one hundred shares more, 
 and the Treasurer of this State is authorized and directed, upon 
 the terms and conditions therein expressed, to subscribe, on behalf 
 of the State, for forty shares in the said augmented capital— 
 
 2. Be it enacted by the General Assembly of Maryland , That, un¬ 
 less the President and Directors aforesaid, shall dispose of sixty 
 shares of the said augmented capital for the sum of one hundred and 
 thirty pounds sterling each share, they shall have no authority to call 
 for, or receive from, the Treasurer of this State, any subscription for 
 any part of the said augmented capital which, by the said act, he is 
 authorized to subscribe, nor for any payment of the said subscription, 
 but in the same proportion as the other subscribers to the said aug¬ 
 mented capital shall, from time to time, pay and advance to the said 
 President and Directors the amount of their respective subscriptions, 
 nor until the said President and Directors shall certify to the said 
 Treasurer, under their hands, that the preceding instalments have 
 been paid on every share of said augmented capital. 
 
 An act to authorize and empower the President and Directors of the 
 Potomac Company to contract the breadth of the locks at the Great 
 Falls of Potomac.—[Passed November Session , 1796.] 
 
 “ Whereas, by an act of the General Assembly, passed November ses¬ 
 sion, one thousand seven hundred and eighty-four, entitled An act 
 for establishing a company for opening and extending the naviga¬ 
 tion of the river Potomac, it is, amongst other things, provided, 
 that the tolls therein established shall be payable only on condition 
 the said Potomac Company shall make the river well capable of 
 being navigated, in dry seasons, from Payne’s Falls to the Great 
 Falls, by vessels drawing one foot water, and from the Great Falls 
 to tide water, and shall, at or near the Great Falls, make a cut or 
 canal twenty-five feet wide, and four feet deep, with sufficient 
 
187 
 
 locks, if necessary, each of eighty feet in length, sixteen feet in 
 breadth, and capable of conveying vessels or rafts drawing four 
 feet water at the least: And whereas it is represented to this Gen¬ 
 eral Assembly, by the President and Directors of the Potomac 
 Company, that the breadth of the locks as above directed is unne¬ 
 cessarily great, and that the contraction of the same to the breadth 
 of fourteen feet would render the said locks more complete, and 
 considerably lessen the expense of finishing the same— 
 
 “2. Be it enacted by the General Assembly of Maryland , That the 
 President and Directorsof the said Potomac Company, or a majority 
 of them, be, and they are hereby, authorized and empowered to con¬ 
 tract the locks at the Great Falls of Potomac to any breadth they 
 ) may think proper, provided the same be not of less breadth than 
 fourteen feet; and that, when the said locks are completed of the 
 breadth hereby authorized, the said company be entitled to all the 
 tolls, benefits, and advantages therefrom,'which, by law, they would 
 be, provided the said locks had been completed of the breadth of six¬ 
 teen feet, any thing in any act to the contrary notwithstanding.” 
 
 An act to authorize the Potomac Company to receive tolls on produce 
 i carried through the canal at the Great Falls , and for other pur¬ 
 
 poses therein mentioned—[Passed November Session, 1797.] 
 
 4i Whereas the Potomac Company have by their petition set forth 
 to this General Assembly, that they have at a great expense re¬ 
 moved most of the obstructions in the Potomac river, from 
 Savage river to tide water, except those at the Great Falls; that 
 considerable quantities of produce are now brought down by boats 
 % to Williamsport, Watts’s Branch, and the Great Falls, by which 
 
 much time, labor, and expense, are saved to the owners of such 
 produce; that many articles are now transported through the locks 
 S at the Little Falls without paying any toll whatever; that the com¬ 
 
 pany, to facilitate the transportation of produce down said river, 
 have constructed an inclined plane from the lower end of the canal 
 to the surface of the river below the Great Falls, by means of which 
 machine all articles can be let down, and those not of great bulk or 
 weight taken up, with security and despatch; that a warehouse is 
 also provided for storing such articles when found necessary, or 
 when boats are not ready for transporting said produce down the 
 said river; that those now navigating the said river receive great 
 benefit from the improvement of the navigation by the labor and 
 expenditures of said company; they conceive it to be just and rea¬ 
 sonable that they should make some compensation for the benefits 
 received ; all which appears to be reasonable : Therefore, 
 
 “ 2. Be it enacted by the General Assembly of Maryland , That the 
 Potomac Company be, and hereby are, authorized and empowered 
 
 # 
 
188 
 
 to receive, at or near the mouth of Conococheague, the tolls payable 
 at that place on articles transported thither, also, the tolls payable 
 at Watts’s Branch and the Great Falls, upon all articles brought down 
 to those places, or either of them, in the same manner as if the locks 
 at the Great Falls were now complete; and, also, to receive the tolls 
 upon such articles as are brought up the river to the Great Falls : 
 Provided , That the said company, at their own expense, carry all pro¬ 
 duce brought to the said inclined plane down or up the same, as the 
 case may be, and, if required, store the said produce, or deliver it 
 along side the said boats in which it is intended to be carried down 
 the river, at their own risk and cost. 
 
 " 3. And be it enacted , That the said Potomac Company be autho¬ 
 rized and empowered, and are hereby authorized and empowered, to 
 receive on all articles transported through the locks finished and com¬ 
 pleted at the Little Falls, the same rates and tolls payable on said 
 articles at Hook’s Falls, and at or near the mouth of Conococheague, 
 provided such articles have not before paid any tolls at any other 
 place in said river above the said Little Falls. 
 
 “4. And be it enacted , That the time for completing the navigation 
 of Potomac river be, and is hereby, further extended until the first 
 day of January, eighteen hundred and three, and that no privilege or 
 advantage granted by law shall be forfeited or lost, in case the navi¬ 
 gation aforesaid shall be finished within the time hereby limited, any 
 thing in any act to the contrary notwithstanding.” 
 
 An act concerning the Potomac Company.—[Passed November Session 9 
 
 1802.] 
 
 “ Whereas the object contemplated by the act of Assembly for estab¬ 
 lishing a company for opening and extending the navigation of the 
 river Potomac, has been accomplished, 
 
 “2. Be it enacted by the General Assembly of Maryland , Th^t the 
 proprietors of shares in the said Potomac Company, their heirs 
 and assigns, shall and may demand, take, and receive, tolls, at the 
 several and respective places heretofore fixed by law for the payment 
 and receipt- thereof, to wit: at or near the mouth of Conococheague, 
 Hook’s Falls, the Great Falls, and the Little Falls, according to the 
 rates heretofore established; and all and every of the rights, inter¬ 
 ests, privileges, and immunities, heretofore granted to, or vested in, 
 the said proprietors and Potomac Company, are hereby confirmed 
 and established to them, their heirs and assigns, and succesors. 
 
 “ 3. And be it further enacted , That the locks erected at the Great 
 Falls of the breadth of twelve feet, shall be as available in law, and 
 shall be deemed and taken of the same force and virtue, as if the 
 same were of the breadth of fourteen feet: and hereafter, when new 
 [ocks are erected, er old ones repaired, they shall be erected and re¬ 
 
 ft 
 
1S9 
 
 paired of such breadth and length, and of such material, as a gene¬ 
 ral meeting of the proprietors shall deem most conducive to the pub¬ 
 lic interest and convenience ; provided, that no lock shall be less 
 than eighty feet in length, and twelve feet in breadth.” 
 
 An act allowing further time to the Potomac Company for complet¬ 
 ing the navigation of the Potomac river , and for other purposes . 
 [Passed November Session, 1809.] 
 
 “ Be it enacted by the General Assembly of Maryland, That the 
 further time of ten years, to be computed from the expiration of the 
 term already granted, shall be, and is hereby, allowed the Potomac 
 Company to complete the navigation of the Potomac river.” 
 
 An act further, supplementary to the act, entitled “ An act for estab¬ 
 lishing a Company for opening and extending the navigation of the 
 river Potomac.”—[Passed November Session , 1811.] 
 
 Whereas doubts have arisen whether the act of Assembly, entitled 
 “a further supplement to the act for establishing a company for 
 opening and extending the navigation of the river Potomac,” pass¬ 
 ed at November session, seventeen hundred and ninety, authori¬ 
 zes the President and Directors of the said Company to condemn 
 lands on the branches of the Potomac river, for the purpose of 
 making canals and locks, in improving the navigation of such 
 branches, and to make agreements with the proprietors of lands 
 whereby the water may be used for navigation— 
 
 Be it enacted, That the President and Directors shall be, and they 
 are hereby, authorized and empowered to exercise the same powers, 
 and to pursue the same measures, for acquiring and condemning lands 
 for the purposes aforesaid on the branches of said river, and under 
 the same restrictions as are given and directed by the fourth, eleventh 
 and thirteenth sections of the act of Assembly, passed at November 
 session, seventeen hundred and eighty four, entitled “ An act for 
 establishing a company for opening and extending the navigation 
 of the river Potomac,” relative to the acquiring and condemning 
 lands for erecting locks and making canals on that river ; and more¬ 
 over, the said President and Directors of the said Company shall 
 have on the said branches power to agree with the proprietors of the 
 adjacent lands as to the manner of erecting dams and conducting the 
 water, so as to answer the purposes of navigation in such places as 
 in the opinion of the said President and Directors it may be conve¬ 
 niently done : Provided, nevertheless, that the privileges and power 
 by this act conferred shall be construed to extend only to the princi¬ 
 pal branches or streams emptying into the Potomac, to wit: The 
 
190 
 
 Monocacy, Antietam, and Conococheague, leaving the others and 
 smaller ones free and unoperated upon or bound by this act. 
 
 And whereas persons owning land on the said branches, may be 
 desirous to improve the same for the purposes of manufacture, the 
 said President and Directors are hereby fully authorized and empo>v- 
 ered to grant to the said persons the privilege of using the surplus 
 water for said purposes from time to time as they may be required so 
 to do. 
 
 Resolutions passed by the General Assembly of the State of Maryland, 
 at December Session , 1820. 
 
 Resolved, That the Governor, by and with the advice and consent 
 of the Council of this State shall appoint two commissioners, to 
 meet such commissioners as may be appointed on the part of the State 
 of Virginia, whose duty it shall be to examine into and report the 
 state of the navigation of the Potomac river and its branches, and to 
 inquire into and report the situation and condition of the affairs of 
 the Potomac Company, the amount and character of its receipts and 
 expenditures, and to advise and consult with the commissioners on 
 the part of the State of Virginia, as to the measures most advisable 
 to be recommended to, and conjointly adopted by, the said States, 
 either for giving aid to the said company in the further prosecution 
 of the said work, or for the more effectual improvement of the navi¬ 
 gation of the said river, by such other means as may be deemed most 
 expedient. 
 
 Be it further resolved , That the commissioners aforesaid shall re¬ 
 port their proceedings, under these resolutions, to the Governor of 
 the State, as soon as practicable, after they shall have executed the 
 duties prescribed to them by these resolutions. 
 
 Be it further resolved, That the Governor of the State communi¬ 
 cate the passage of these resolutions, as soon as possible, to the Go¬ 
 vernor of Virginia, with a request that it may be laid before the 
 General Assembly of that State, as soon as practicable. 
 
 Be it further resolved , That the Governor be requested to notify, 
 within convenient time, each commissioner of his appointment. 
 
 Be it further resolved, That each commissioner, appointed under 
 these resolutions, on the part of this State, shall receive four dollars 
 per day, for the time he shall be necessarily employed in the perform¬ 
 ance of the duties prescribed by this act, to be certified by the said 
 commissioners, and that their chain carriers and others to be employed 
 by them, shall be entitled to receive such compensation as the com¬ 
 missioners shall certify to be just and reasonable ; and the cost 
 and charges hereby authorized, shall be paid out of any unappropri¬ 
 ated money in the Treasury, under the direction of the Governor and 
 Council of this State; and the said commissioners are hereby empow¬ 
 ered to obtain, in such manner as they may think best, boats, if 
 necessary, for the purpose of more effectually carrying the provisions 
 of these resolutions into operation, to be paid for as before directed. 
 
19 i 
 
 F. 
 
 Extract from the Proceedings of sundry citizens of Baltimore , convened 
 for the purpose of devising the most efficient means of improving the 
 intercourse between that City and the Western States . 
 
 Baltimore, February 12, 1827. 
 
 i At a meeting of a number of citizens to take into consideration the 
 
 best means of restoring to the City of Baltimore, that portion of the 
 Western Trade, which has lately been diverted from it by the intro¬ 
 duction of Steam navigation, and by other causes, William Patter- 
 * son, Esq. was appointed Chairman, and David Winchester, Secre¬ 
 tary. 
 
 Various documents and statements, illustrating the efficiency of 
 Rail Roads, for the conveying of articles of heavy carriage, at a 
 small expense, were produced and examined ; and the superior advan¬ 
 tage of this mode of transportation, over turnpike roads or canals, 
 in many situations being, according to those statements, satisfac¬ 
 torily shewn, it was, on motion, Resolved , That the said documents be 
 referred to a Committee, whose duty it shall he to examine the same, 
 together with such other facts and experiments as they may be able 
 to collect; and when prepared, to report their opinion thereon, and 
 on the course it may be deemed proper for this meeting to pursue. 
 
 Resolved , That Philip E. Thomas, Benjamin C. Howard, George 
 Brown, Talbot Jones, Joseph W. Patterson, Evan Thomas, and John 
 V. L. M’Mahon, compose the said Committee. 
 
 Adjourned to meet on Monday evening, the 19th instant. 
 
 * - 
 
 At a meeting held pursuant to the foregoing adjournment, Feb. 19. 
 1827, William Patterson Esq. was called to the chair, and David 
 Winchester was appointed Secretary. The Committee* produced 
 the report from which, and the proceedings thereon, the following 
 paragraphs are extracted : 
 
 The Committee to whom was referred sundry documents and state¬ 
 ments, illustrating the relative or comparative advantages of Canals 
 and Rail-Roads, for connecting the trade of the City of Baltimore 
 with the Western States, having carefully examined the said docu¬ 
 ments and statements, together with such additional facts and evi¬ 
 dences as they have been able to collect, beg leave now to submit the 
 following report: 
 
192 
 
 “ In conclusion, the Committee beg leave to refer to the annexed Ta¬ 
 bles, numbered from 1 to 7, in which they have arranged, under a 
 condensed form, some of the more important facts and statements em¬ 
 braced in this report. The Committee have also in these Tables 
 contrasted the advantages, which, in their opinion, would be likely 
 to accrue to the City of Baltimore, from connecting her Trade with 
 the Western States, by intersecting the contemplated Chesapeakeand 
 Ohio Canal within the District of Columbia, and bv A DIRECT 
 RAIL ROAD FROM BALTIMORE TO SOME ELIGIBLE 
 POINT ON THE OHIO RIVER, 
 
 All which is respectfully submitted. 
 
 PHILIP E. THOMAS., Chairman of the Com 9 tee. 
 
 The report being read and considered, was unanimously approved 
 by the meeting. Whereupon it was, on motion, 
 
 Resolved, That immediate application be made to the Legislature of « * 
 Maryland, for an act incorporating a joint stock company, to be 
 styled “The Baltimore and Ohio Rail Way Company,” and cloth¬ 
 ing such company with all the powers necessary to the construction of 
 a Rail Road, with two or more sets of rails, from the city of Balti¬ 
 more to the Ohio river. 
 
 Resolved , That the capital stock of said company shall be Five 
 Millions of Dollars, but that the company shall be incorporated, and 
 provision shall be made by said act for its organization, upon the 
 subscription of One Million of Dollars to said stock, and that the 
 said company shall have power to increase the capital stock thereof, 
 so far as may be necessary to effect said objects. 
 
 Resolved, That it is expedient and propey, in said act, to permit 
 subscriptions of stock to the same, to be made by the United States, 
 by States, Corporations or Individuals; and to provide that as soon 
 as the said act shall have been passed by the Legislature of Mary¬ 
 land, subscription books may be opened, subscriptions received, the 
 company organized, and the said road constructed, so far as it may 
 lie within the limits of the State of Maryland ; and that the assent 
 of the Legislatures of Pennsylvania and Virginia to the said act shall 
 be obtained as speedily as possible, but shall be made necessary, only 
 so far as, jn constructing the said road, it shall be found necessary to 
 pass through their respective States. 
 
 Resolved, That a Committee, consisting of 25 members, be appoint¬ 
 ed by the Chairman of this meeting, whose duty it shall be to pre¬ 
 prefer an application to the legislature of Maryland for such an act of 
 incorporation. 
 
 The following Committee was then appointed to carry into effect 
 the object of the meeting, to wit : 
 
193 
 
 Charles Carroll, of Carrollton, 
 William Patterson, 
 
 Isaac M’Kim, 
 
 Robert Oliver, 
 
 Charles Ridgely, of Hampton. 
 Thomas Tennant, 
 
 Alexander Brown, 
 
 John M’Kim, Jun. 
 
 Talbot Jones, 
 
 James Wilson, 
 
 Thomas Ellicott, 
 
 George Hoffman, 
 
 William Steuart, 
 
 Philip E. Thomas, 
 William Lorman, 
 George Warner, 
 Benj. C. Howard, 
 Solomon Etting, 
 
 W. W. Taylor, 
 Alexander Fridge, 
 James L. Hawkins, 
 John B. Morris, 
 Luke Tiernan 
 Alexander M’Donald, 
 Solomon Birckhead. 
 
 The meeting then adjourned, sine die . 
 
 WILLIAM PATTERSON, Chairman. 
 David Winchester, Secretary . 
 
 TABLE No. 1. 
 
 Estimated difference in the distance between connecting the city 
 oF Baltimore with the western trade, by a continuous Canal, inter¬ 
 secting the eastern termination of the proposed “ Chesapeake and 
 Ohio Canal,” within the District of Columbia, and of connecting 
 Baltimore with this trade by a Rail Way, direct from that city to 
 some suitable point on the Ohio river. 
 
 The United States’ Engineers report the length of the “ Chesa¬ 
 peake and Ohio Canal,” from the city of Washington to Pitts¬ 
 burg, on the Ohio river, to be - - - 341$ miles. 
 
 Estimated length of a Canal from Baltimore, to in¬ 
 tersect the “ Chesapeake and Ohio Canal,” at 
 Washington, - - - - - 48£ miles. 
 
 Whole distance of a Canal by this route, from Balti¬ 
 more to Pittsburg, - 390 miles. 
 
 23 
 
194 
 
 Estimated distance of a Rail Road, from the city of 
 Baltimore to Wheeling, or some other suitable 
 point on the Ohio River, - 250 miles. 
 
 Distance saved by a Rail Road, 140 miles. 
 
 TABLE No. 2. 
 
 Comparative cost of constructing a Canal communication between 
 the city of Baltimore and the Ohio river, by the proposed route of 
 the “ Chesapeake and Ohio Canal,” and by the proposed direct Rail 
 Road communication between Baltimore and that river. 
 
 The United States’ Engineers estimate the cost of the proposed 
 Canal from Washington to Pittsburg, to be ($22,375,427,) 
 twenty-two millions, three hundred and seventy five thousand, 
 four hundred and twenty-seven dollars ; but we will suppose it 
 could he made for one half of this sum, or - $1 1,000,000 00 
 
 To which should be added the cost of constructing 
 a continuous Canal from the city of Baltimore 
 to the eastern termination of the M Chesapeake 
 and Ohio Canal,” at Washington, that being 
 the only point at which we can intersect it, - $ 1,000,000 00 
 
 $12,000,000 OO 
 
 The highest estimated cost of a Rail Road from 
 Baltimore to the Ohio river, calculating the 
 same to cost $20,000 per mile, (and this is be¬ 
 lieved to be a very high estimate,) would be - $ 5,000,000 00 
 
 Amount of capital saved in favor of a Rail Road, $ 7,000,000 00 
 
 TABLE No. 3. 
 
 Estimated difference of expense on transportation for tolls only, by 
 the proposed canals from Baltimore through the District of Colum¬ 
 bia to Pittsburg, and by a direct Rail-Road route from Baltimore to 
 some point on the Ohio river. 
 
 The United States’ Engineers estimate the cost of transportation, 
 by the proposed Chesapeake and Ohio Canal, at the rate of 1 § 
 cents for each ton per mile—taking the whole distance then from 
 Baltimore to Pittsburg, as is shown in Table No. 1, to be 390 
 miles; the tolls for conveying a ton of freight from Baltimore, 
 the whole distance along this canal would be - - $5 85 
 
195 
 
 Tolls for carrying«the same freight along the proposed 
 Rail Road at the same rate per mile, the distance being 
 250 miles, would be.- $3 75 
 
 Amount of freight saved per ton in favor of a Rail-Road, 
 
 at the same charge for tolls, would be - - - §2 10 
 
 In order, however, to show the actual saving by the Rail- 
 Road, it is necessary to remark, that the proposed 
 charge along it, is not 1£ cents per ton each mile, as 
 charged on the canal, but one cent per ton each mile, 
 and this will give a further advantage in favor of the 
 road on each ton of.- §125 
 
 Making the difference per ton in favor of the Rail-Road, 
 
 to be - - - - - - - - §3 35 
 
 TABLE No. 4. 
 
 Estimate of the income which the proposed Rail-Road from Balti¬ 
 more to some point on the Ohio river, would annually yield, comput¬ 
 ing the freight which would pass upon this road to be only 150,000 
 tons, from West to East, and the amount that would pass from East 
 to West, to be 50,000 tons. 
 
 150,000 tons from West to East, at 1 cent per ton per mile, being 
 the New York canal price, - §375,000 00 
 
 50,000 tons from East to West, at 3 cents per ton 
 per mile, being the New York canal price - §375,000 00 
 
 Total amount of tolls, §750,000 00 
 
 TABLE No. 5. 
 
 Estimate of profits to the holders of stock in the proposed Balti¬ 
 more and Ohio Rail-Road. 
 
 Expense of constructing the proposed road, being 
 estimated at § 20,000 per mile, and the distance 
 being assumed to be 250 miles, would make the 
 whole cost five millions of dollars 
 
 Six per cent, interest on the above capital invest¬ 
 ed, would be. 
 
 Income from tolls as is shown by Table No. 4 
 
 Which leaves §450,000 00 for repairs, contingent 
 expenses, and surplus dividends - 
 
 § 5,000,000 00 
 
 §300,000 00 
 §750,000 00 
 
 §450,000 00 
 
196 
 
 TABLE No. 6, 
 
 Estimated difference of the time it would take for conveying 
 freight from Baltimore to Pittsburg, by the proposed Chesapeake 
 and Ohio Canal, between those places, (through the District of Co¬ 
 lumbia,) and by a direct Rail Road from Baltimore to some point on 
 the Ohio river. 
 
 The United States’ Engineers, (page 38,) estimate the time it will 
 take to travel with loaded boats from Washington to Pittsburg, 
 to be.188 hours. 
 
 The distance between these points being 341 miles, we 
 have only to add the same rate of travelling for the 
 additional distance from Baltimore to Washington, 
 say 48| miles, and the additional time will be - 26$ hours. 
 
 Time employed in passing on the proposed Canals, 
 from Baltimore to Pittsburg, - - - 214$ hours. 
 
 There is abundant evidence to prove, from authentic 
 documents published, that the rate of travelling upon 
 Rail Roads, with the locomotive engines, in England, 
 
 (and this has been sufficiently shewn to be the cheap- 
 , est means,) is with heavy loaded wagons, from four 
 miles to six miles and even eight miles per hour; 
 assuming however the slowest rate, and the passage 
 will be made from Baltimore to the Ohio river, say 
 250 miles, at the rate of 4 miles per hour, is - 62$ hours. 
 
 Time saved in favor of the Rail Road, each trip, 152 hours. 
 
 390 miles- 
 250 
 
 140 miles. 
 
 812,000,000 
 
 5,000,000 
 
 TABLE No. 7. 
 
 Synopsis of the 6 preceding Tables. 
 
 TABLE 1. 
 
 Distance between Baltimore and Pittsburg, by the pro¬ 
 posed Chesapeake and Ohio Canal, - 
 Distance from Baltimore to the Ohio river by the pro¬ 
 posed Rail Road,. 
 
 Distance saved by the road 
 table 2. 
 
 Smallestestimated cost of the proposed Chesapeake and 
 
 Ohio Canal,. 
 
 Highest estimated cost of the contemplated Rail Road, 
 
 Amount of capital saved in favor of the Road, $7,000,000 
 
197 
 
 TABLE 3. 
 
 Cost of transporting , for Tolls only, on a ton of freight 
 from Pittsburg to Baltimore, upon the Chesapeake 
 and Ohio Canal, - $5 85 
 
 Cost of same transportation by the proposed Rail Road, 2 50 
 
 Tolls saved on each ton, by the Rail Road, $3 35 
 
 tables 4 & 5. 
 
 Annual income from Tolls upon the proposed Rail Road $750,000 
 6 per cent, interest on the capital invested, - - 300,000 
 
 Annual surplus profits to be appropriated for repairs 
 and extra dividends, - 
 
 table 6. 
 
 Time employed in passing a Boat from Baltimore to 
 Pittsburg, by the Chesapeake and Ohio Canal, - 
 Time to pass from Baltimore to the Ohio river, upon 
 the proposed Rail Road,. 
 
 Time saved by the Road, each trip, 
 
 i 
 
 $450,000 
 
 214j- hours. 
 62£ hours. 
 
 152 hours. 
 
 The following gentlemen compose the Board of President and Di¬ 
 rectors of the Baltimore and Ohio Rail Road Company. 
 
 Philip E. Thomas, President 
 Charles Carroll, of Carollton 
 William Patterson 
 Robert Oliver 
 Alexander Brown 
 George Hoffman 
 Alexander Fridge 
 
 William Lorman 
 John B. Morris 
 Isaac McKim 
 Patrick Macauly 
 William Steuart 
 Solomon Etting 
 Talbot Jones. 
 
 Extract from the proceedings of the Chesapeake and Ohio Canal Con¬ 
 vention held at the city of Washington on the 6th of December , 1826. 
 
 Among others who appeared as Delegates to the said Convention, 
 were the following gentlemen : 
 
 From Baltimore dty —Present, Solomon Etting, Benjamin C* 
 Howard, William Lorman, Isaac McKim, Joseph W. Patterson, and 
 Philip E. Thomas. 
 
 The following gentlemen, also appointed Delegates to the Conven¬ 
 tion by the city of Baltimore, were absent: Thomas Ellicott, Roger 
 B. Taney, 'Luke Tiernan. 
 
 The Central Committee having made their report, recommending 
 the adoption of certain resolutions, and the first of the said resolutions 
 being under consideration, to wit: 
 
198 
 
 Resolved, That it will be expedient to obtain such an amendment 
 of the charter of the Chesapeake and Ohio Canal Company as shall 
 authorize the company to terminate, if they deem proper, the eas¬ 
 tern section of the said canal at or near the town of Cumberland; 
 and to extend, by any route therefrom, the western section of the said 
 canal across the Alleghany to Pittsburg, or to substitute therefor a 
 railway; and in the event that such a change shall be deemed expedient 
 in the route now prescribed by the charter, to defer the extension of 
 a canal along the Potomac from Cumberland to the mouth of Savage, 
 and to reduce the dimensions thereof to a breadth less than that now 
 required : 
 
 Mr. Kennedy moved to strike out the words “or to substitute 
 therefor a railway.” 
 
 Mr. Key moved to add, “ or such other mode of transportation as 
 they may find expedient.” 
 
 Mr. Kennedy’s motion was negatived. 
 
 The resolution was adopted, by adding to the resolution of the 
 Central Committee, after the word “railway,” “or turnpike road 
 on that portion of the route, or any part thereof, designated in the 
 report of the Board of Internal Improvement, of the 23 d of October, 
 1826 , as the middle section, or on that part of the route by Savage, 
 which corresponds therewith.” 
 
 The second resolution recommended by the Central Committee, in 
 the following words, was then taken up : 
 
 Resolved , That it will be expedient to address a memorial to the 
 Congress of the United States, requesting a subscription to the stock 
 of the said canal, and a like memorial to the Legislatures of Virginia, 
 Maryland, and Pennsylvania; and that an application be made to 
 the cities of Washington, Georgetown, and Alexandria, to aid, by a 
 similar Subscription, the stock of the said company. 
 
 On motion of Mr. Etting, the word “Baltimore” was added, after 
 the word “ Alexandria,” in the foregoing resolution. 
 
 The foregoing resolutions were, it is believed, adopted unanimously 
 by the Convention. 
 
199 
 
 AN ACT TO INCORPORATE THE BALTIMORE AND OHIO RAIL ROAD 
 
 COMPANY. 
 
 [PASSED FEBRUARY 28, 1827.] 
 
 1. Be it enacted by the General Assembly of Maryland . That 
 Isaac M‘Kim, Thomas Ellicott, Joseph W. Patterson, John M 4 Kim, 
 Junior, William Stewart, Talbot Jones, Roswell L. Colt, George 
 Brown, and Evan Thomas, be and they are hereby appointed com¬ 
 missioners, under the direction of a majority of whom subscriptions 
 may be received to the capital stock of the Baltimore and Ohio 
 Rail-Road Company, hereby incorporated ; and they, or a majority 
 of them, may cause books to be opened at such times and places as 
 they may direct, for the purpose of receiving subscriptions to the 
 capital stock of said company, after having given such notice 
 of the times and places of opening the same as they may deem pro¬ 
 per ; and that, upon the first opening of said books, they shall be 
 kept open for at least ten successive days, from 10 o’clock, A. M. 
 until 2 o’clock, P. M., and if, at the expiration of that period, such 
 a subscription to the capital stock of said company as is necessary 
 to its incorporation, shall not have been obtained, the said commis¬ 
 sioners, or a majority of them, may cause the said books to be open¬ 
 ed, from time to time, after the expiration of the said ten days, for 
 the space of twelve months thereafter, or until the sum necessary to 
 the incorporation of the company shall be subscribed, if sooner sub¬ 
 scribed ; and, if any of the said commissioners shall die, resign, or 
 refuse to act, during the continuance of the duties devolved upon 
 them by this act, another may be appointed in his stead, by the re¬ 
 maining commissioners, or a majority of them. 
 
 2. And be it enacted , That the capital stock of the said Baltimore 
 and Ohio Rail Road Company shall be three millions of dollars, in 
 shares of one hundred dollars each, of which ten thousand shares 
 shall be reserved for subscription by the State of Maryland, and five 
 thousand for the City of Baltimore, for the space of twelve months 
 after the passage of this act by the Legislature of Maryland, and 
 the remaining fifteen thousand shares may be subscribed for by any 
 other corporation, or by individuals ; and that as soon as ten thou¬ 
 sand shares of the said capital stock shall be subscribed, the subscri¬ 
 bers of the said stock, their successors, and assigns, shall be, and 
 they are hereby declared to be, incorporated into a company, by the 
 name of The Baltimore and Ohio Rail Road Company, and by that 
 name shall be capable, in law, of purchasing, holding, selling, leas¬ 
 ing, and conveying, estates, real, personal, and mixed, so far as shall 
 be necessary for the purposes hereinafter mentioned, and no further; 
 and shall have perpetual succession, and by said corporate name may 
 sue and be sued, and may have and use a common seal, which they 
 shall have power to alter or renew at their pleasure, and shall have. 
 
200 
 
 <* 
 
 enjoy, and may exercise, all the powers, rights, and privileges,which 
 other corporate bodies may lawfully do, for the purposes mentioned 
 in this act. 
 
 3. And be it enacted , That if more than fifteen thousand shares 
 shall be subscribed to the capital stock of said company, not reserv¬ 
 ed to the State of Maryland, or to the City of Baltimore, the said 
 commissioners, or a majority of them, shall reduce the subscription 
 to fifteen thousand shares, by striking off from the largest number of 
 shares in succession, until the subscriptions are reduced to fifteen 
 thousand shares, or all the subscriptions to one share ; and if there 
 be still an excess, then lots shall be drawn by the commissioners, to 
 determine who are to be excluded. 
 
 4. And be it enacted , That upon every such subscription there 
 shall be paid, at the time of subscribing, to the said commissioners, 
 or to their agents, appointed to receive such subscriptions, the sum 
 of one dollar on every share subscribed, and the residue thereof shall 
 be paid in such instalments, and at such times, as it may be required 
 by the president and directors of said company : Provided , That not 
 more than one-third of the subscription be demanded in any one year 
 from the commencement of the work, nor any payment demanded 
 until at least sixty days’ public notice of such demand shall have 
 been given by the said president and directors; and if any subscriber 
 shall fail or neglect to pay any instalment, or part of said subscrip¬ 
 tion, thus demanded, for the space of sixty days next after the time 
 the same shall be due and payable, the stock on which it is demand¬ 
 ed shall be forfeited to the company, and may be sold by the said 
 president and directors, for the benefit of the company ; but the pre¬ 
 sident and directors may remit any such forfeiture on such terms as 
 they shall deem proper. 
 
 5. And be it enacted , That if the subscription herein made neces¬ 
 sary to the incorporation of the said company, shall not be obtained 
 within twelve months after the first opening of the subscription books 
 by the said commissioners, this act, and all the subscriptions under 
 it, shall be null and void ; and the said commissioners, after dischar¬ 
 ging the expenses of opening the books, shall return the residue of 
 the money paid in upon such subscriptions, to the several subscribers, 
 in proper proportions to the sums respectively paid in by them. 
 
 6. And be it enacted , That, at the expiration of the ten days for 
 which the books are first opened, if ten thousand shares of said ca¬ 
 pital stock shall have been subscribed, or if not, as soon thereafter as 
 the same shall be subscribed, if within one year after the first open¬ 
 ing of the books, the said commissioners, or a majority of them, shall 
 call a general meeting of the subscribers at such time and place as 
 they may appoint, and shall give at least twenty days’ public notice 
 thereof; and at such meeting the said commissioners shall lay the 
 subscription books before the subscribers then and there present, and 
 thereupon the said subscribers, or a majority of them, shall elect 
 twelve directors, by ballot, to manage the affairs of said company; 
 and these twelve directors, or a majority of them, shall have the 
 
-power of electing a president of caid company, either from among 
 the directors or others, and of allowing him such compensation for 
 his services as they may deem proper; and that, in said election, 
 and on all other occasions wherein a vote of the stockholders of said 
 company is to be taken, each stockholder shall be allowed one vote 
 "for every share owned by it, him, or her, and every stockholder may 
 depute any other person to vote and act for it, him, or her, as its, his, 
 or her proxy, and the commissioners aforesaid, or any three or more 
 of them, shall be judges of the said first flection of directors. 
 
 7. And be it enacted , That, to continue the succession of the pre¬ 
 sident and directors of said company, twelve directors shall be cho¬ 
 sen annually, on the second Monday of October in every year, in the 
 City of Baltimore, by the stockholders of said company, and that the 
 State of Maryland and the City of Baltimore may each appoint one 
 additional director of said company for every twenty-five hundred 
 shares of stock of said company by them respectively owned at the 
 time of such election, but shall not be permitted to vote upon their 
 stock in the election of the directors by the stockholders, in general 
 meetings and that the directors of said company, or a majority of 
 them, shall have power to appoint judges of all elections, and to elect 
 a president of said company, either from amongst the directors, or 
 others, and to allow him such compensation for his services as they 
 may deem proper; and, if any vacancy shall occur by death, resig¬ 
 nation, or refusal to act, of any president or director, before the 
 year for which he was elected has expired, a peison to fill such va¬ 
 cant place, for the residue of the year, may be appointed by the pre¬ 
 sident and directors of said company, or a majority of them ; and 
 that the president and directors of the company shall hold and exer¬ 
 cise their offices until a new election of president and directors; and 
 that all elections which are, by this act, or the by-laws of said com¬ 
 pany, to be made on a particular day, or at a particular time, if not 
 made on such day, or at such time, may be made at any time within 
 thirty days thereafter. 
 
 8. And be it enacted , That a general meeting of the stockholders 
 of said company shall be held annually, at the time and place appointed, 
 for the election of the president and directors of said company ; that 
 they may be called at any time during the interval between said an¬ 
 nual meetings, by the president and directors, or a majority of them, 
 or by the stockholders owning at least one fourth of the whole stock 
 subscribed, upon giving thirty days’ public notice of the time and 
 place of holding the same; and when any such meetings are called by 
 the stockholders, such notice shall specify the particular object of the 
 call; and if at any such called meetings a majority (in value) of the 
 stockholders of said company, are not present in person or by proxy, 
 such meetings shall be adjourned from day to day, without transact¬ 
 ing any business, for any time not exceeding three days, and if with¬ 
 in the said three days, stockholders having a majority (in value) of 
 the stock subscribed do not thus attend, such meeting shall be dis¬ 
 solved. 
 
 24 
 
202 
 
 9. And be it enacted, That at the regular annual meetings of 
 the stockholders of said company, it shall be the duty of the president 
 and directors, in office for the preceding year, to exhibit a clear and 
 distinct statement of the affairs of the company ; that at any called 
 meetings of the stockholders, a majority of those present may require 
 similar statements from the president and directors, whose duty it 
 shall be to furnish them when thus required, and that at all general 
 meetings of the stockholders, a majority (in value) of all the stock¬ 
 holders in said company may remove from office any president, or 
 any of the directors of said company, and may appoint others in 
 their stead. 
 
 10. And be it enacted, That every president and director of said 
 company, before he acts as such, shall swear, or affirm, as the case 
 may be, that he will well and truly discharge the duties of his said 
 office, to the best of his skill and judgment. 
 
 11. And be it enacted , That if any of the said fifteen thousand 
 shares of the capital stock of said company, not reserved to the city 
 of Baltimore, or to the StatS of Maryland, shall remain unsubscrib¬ 
 ed until the organization of the said company, or if the.shares of said 
 capital stock herein before reserved to the said State or City, or any 
 part of them, shall be subscribed by said State or City respectively, 
 during the time for which such stock is reserved for them, in either 
 case the president and directors of the said company, or a majority 
 of them, shall have power to open books, and to receive subscriptions 
 to any of the capital stock of said company which may thus remain 
 unsubscribed for, or to sell or dispose of such unsubscribed stock for 
 the benefit of the company, for any sum not under its par value; and 
 the purchasers or subscribers of such stock shall have all the rights, 
 powers, and privileges, of original subscribers, and shall be subject 
 to the same regulations. 
 
 12 . And be it enacted, That the said president and directors, or a ma¬ 
 jority of them, may appoint all such officers, engineers, agents, or 
 servants whatsoever, as they may deem necessary for the transaction 
 of the business of the company, and may remove any of them at their 
 pleasure ; that they, or a majority of them, shall have pow er to de¬ 
 termine, by contract, the compensation of all the engineers, officers, 
 agents, or servants, in the employ of said company, and to determine, 
 by their by-laws, the manner of adjusting and settling all accounts 
 against the company, and also the manner and evidence of transfers 
 of stock in said company; and that they, or a majority of them,shall 
 have power to pass all by-laws which they may deem necessary or 
 proper for exercising all the powers vested in the company hereby 
 incorporated, and for carrying the objects of this act into effect— 
 Provided , only , That such by-laws shail not be contrary to the laws 
 of the United States, or the laws of any of the States assenting to 
 this act, or any of the provisions of this act. 
 
 13. And be it enacted, That if the capital stock of said company 
 shall be deemed insufficient for the purposes of this act, it shall and 
 may be lawful for the president and directors of said company, or a 
 
203 
 
 majority of them, from time to time, to increase the said capital 
 stock, by the addition of as many shares as they may deem necessa¬ 
 ry, for which they may at their option cause subscriptions to be re¬ 
 ceived in the manner prescribed by them, or may sell the same for 
 the benefit of the company, for any sum not under their par value ; 
 and that they, or a majority of them, shall have power to borrow 
 money for the objects of this act, to issue certificates or other evi¬ 
 dences of such loans, and to pledge the property of the company for 
 the payment of the same, and its interest. 
 
 14. And be it enacted , That the president and directors of said 
 company shall be and they are hereby invested with all the rights and 
 powers necessary to the construction and repair of a rail road from 
 the city of Baltimore, to some suitable point .on the Ohio river to be 
 by them determined, not exceeding sixty-six feet wide, with as many 
 sets of tracts as the said president and directors, or a majority 
 of them, may deem necessary ; and they, or a majority of them, 
 may cause to be made, or contract with others for making, said rail 
 road, or any part of it ; and they, their agents, or those with whom 
 they may contract for making any part of the same, or their agents, 
 may enter upon and use, and excavate, any land which may be want¬ 
 ed for the site of said road, or the erection of warehouses, or other- 
 works necessary to said road, or for any other purpose necessary or 
 useful in the construction or repair of said road, or its works, and 
 that they may build bridges, may fix scales and weights, may lay 
 rails, may take and use any earth, timber, gravel, stone, or other ma¬ 
 terials, which may be wanted for the construction or repair of any 
 part of said road, or any of its works ; and may make and construct 
 all works whatsoever, which may be necessary and expedient, in or¬ 
 der to the proper completion of said road ; and that they, or a majo¬ 
 rity of them, may make, or cause to be made, lateral rail roads, in 
 any direction whatsoever, in connexion with said rail road from the 
 city of Baltimore to the Ohio river, and in the construction of the 
 same, or their works, shall have, possess, and may exercise, all the 
 rights and powers hereby given to them, in order to the construc¬ 
 tion or repair of the said rail road from the city of Baltimore to the 
 Ohio river. 
 
 15 . And be it enacted , That the president and directors of said 
 company, or a majority of them, or any person or persons authorized 
 by a majority of them, may agree with the owner or owners of any 
 land, earth, timber, gravel, stone, or other materials, or any im¬ 
 provements which may be wanted for the construction or repair of 
 any of said roads, or of any of their works, for the purchase or use 
 and occupation of the same, and if they cannot agree, or if the own¬ 
 er or owners, or any of them, he a feme covert , under age, non com¬ 
 pos mentis , or out of the county in which the property wanted may lie, 
 when such land or materials # shall be wanted, application may be made 
 to any justice of the peace of such county, who shall thereupon issue his 
 warrant, under hand and seal, directed to the sheriff of said county, 
 requiring him to summon a jury of twenty inhabitants of said coun- 
 
204 
 
 ty, not related nor in anywise interested, to meet on the land, or near 
 to the other property or materials to be valued, on a day named in 
 said warrant, not less than ten nor more than twenty days after the 
 issuing of the same, and if at said time and place any of said jurors 
 summoned do not attend, the said sheriff sha-1 immediately summon 
 as many jurors as may he necessary with the jurors in attendance, to 
 furnish a pannel of twenty jurors in attendance, and from them each 
 party, or its, his, her, or their agent, if either be not present in 
 person or by agent, the sheriff, for him, her, it, or them, may strike 
 off four jurors, and the remaining twelve shall act as the jury of in¬ 
 quest of damages ; and, before they act as such, the said sheriff shall 
 administer to each of them an oath, or affirmation, as the case may 
 be, that he will justly and impartially value the damages which the 
 owner or owners will sustain by the use or occupation of the same, 
 required by the company ; and the jury, in estimating such damages, 
 shall take into the estimate the benefit resulting to the said owner or 
 owners from c.onducting such rail road through, along, or near, to 
 the property of said owner or owners, hut only in extinguishment of 
 the claim for damages ; and the said jury shall reduce their inquisi¬ 
 tion to writing, and shall sign and seal the same, and it shall then bt 
 returned, by said sheriff, to the clerk or prothonotary of his county, 
 as the-case may be, and by such clerk or prothonotary filed in his 
 court, and shall be confirmed by. said court at its next session, if no 
 sufficient cause to the contrary be show r n ; and, when confirmed,shall 
 he recorded by said clerk or prothonotary, at the expense of said 
 company, hut if set aside, the said court may direct another inquisi¬ 
 tion to he taken, in the manner above prescribed $ and such inquisi¬ 
 tion shall describe the property taken, or the bounds of the land con-' 
 demned, and the quantity orfduration of the interest in the same, va¬ 
 lued for the company, and such valuation, when paid or tendered to 
 the owner or owners of said property, or his, her, or their legal re¬ 
 presentatives, shall entitle the said company to the estate and inter¬ 
 est in the same, thus valued, as fully as if it had been conveyed by 
 the owner or owners of the same ; and the valuation, if not received 
 when tendered, may at anytime thereafter be received from the com¬ 
 pany, without costs, by the said owner or owners, or his, her, or their 
 legal representative or representatives. 
 
 16. Jind be it enacted , That wherever, in the construction of said 
 road or roads, it shall be necessary to cross or intersect any estab¬ 
 lished road or way, it shall be the duty of the president and directors 
 of said company so to construct the said road across such establish¬ 
 ed road or way, as not to impede the passage or transportation of 
 persons or property along the same; or wffiere it shall be necessary 
 to pass through the land of any individual, it shall also he their duty 
 to provide for such individual proper wagon-ways across said road 
 or roads, from one part of his land to thp other. 
 
 17. And be it enacted , That w hensoever it shall he necessary for 
 said company to have, use, or occupy, any lands, materials, or other 
 property, in order to the construction or repair of any part of said 
 
^05 
 
 road or roads, or their works or necessary buildings, the president 
 and directors of said company, or their agents, or those contracting 
 with them for making or repairing the same, may immediately take 
 and use the same, (they having first caused the property wanted to be 
 viewed by a jury, formed in the manner herein before prescribed) in 
 those cases where the property is to be changed or altered by admix¬ 
 ture with other substances before such alteration is made, and that it 
 shall not be necessary, after such view, in order to the use or occu¬ 
 pation of the same, to wait the issue of the proceedings upon such 
 view ; and the inquest of the jury, after confirmation and after pay¬ 
 ment or tender of the valuation, shall be a bar to all actions for ta¬ 
 king or using such property, whether commenced before or after such 
 confirmation, or the payment of said valuation. 
 
 18. And be it enacted , That the said president and directors, or 
 a majority of them, shall have power to purchase, with the funds 
 of the said company, and place on any rail road constructed by them 
 under this act, all machines, wagons, vehicles, or carriages of any 
 description whatsoever, which they may <leem necessary or proper 
 for the purposes of transportation on said road, and they shall have pow¬ 
 er to charge for tolls upon (and the transportation of persons) goods, 
 produce, merchandise, or property of any kind whatsoever, trans¬ 
 ported by them along said rail way from the city of Baltimore to the 
 Ohio river, any sum not exceeding the following rates, viz : On all 
 goods, produce, merchandise, or property of any description whatso¬ 
 ever, transported by them from west to east, not exceeding one cent 
 a ton per mile, for toll, and three cents a ton per mile for transpor¬ 
 tation ; on all goods, produce, merchandise, or property of any de¬ 
 scription whatsoever, transported by them from east to west, not ex¬ 
 ceeding three cents a ton per mile for tolls, and three cents a ton per 
 mile for transportation, and for the transportation of passengers not 
 exceeding three cents per mile for each passenger ; and it shall not be 
 lawful for any other company, or any person or persons whatsoever, 
 to travel upon or use any of the roads of said company, or to trans¬ 
 port persons, merchandise, produce, or property of any description 
 whatsoever, along said roads, or any of them, without the license or 
 permission of the president and directors of said company; and that 
 the said road or roads, with all their works, improvements and pro¬ 
 fits, and all the machinery of transportation used on said road, are 
 hereby vested in the said company, incorporated by this act, and 
 their successors, forever; and the shares of the capital stock of the 
 said company shall be deemed and considered personal estate, and 
 shall he exempt from the imposition of any tax or burthen by tho 
 btates assenting to this law. 
 
 19. And be it enacted , That the said president and directors shall 
 annually, or semi-annually, declare and make such dividend as they 
 may deem proper, of the nett profits arising from the resources of 
 the said company, after deducting the necessary current and pro¬ 
 bable contingent expenses; and that they shall divide the same 
 amongst the proprietors of the stock of said company? in proper pro¬ 
 portions to their respective shares. 
 
20. And be it enaeted , That if any person or persons shall wilful¬ 
 ly, by any means whatsoever, injure, or impair, or destroy, any part 
 of any rail road, constructed by said company under this act, or any 
 of their necessary works, buildings, carriages, vehicles or machines, 
 of said company, such person or persons, so offending, shall, each of 
 them, for every such offence, forfeit and pay to the said company, the 
 sum of five hundred dollars, which may be recovered in the name of 
 said company, by an action of debt, in the county court of the county 
 wherein the offence shall be committed, and shall also be subject to 
 indictment in said court, and upon conviction of such offence, shall 
 be punished by fine and imprisonment, in the discretion of the court. 
 
 21. And be it enacted, That as soon as this act shall have been 
 passed by the legislature of Maryland, books may be opened, sub¬ 
 scriptions received, and the said company organized, and that when 
 organized, the said company, and the President and Directors of the 
 same, shall have all the powers, rights and privileges, granted by 
 this act, and shall be subject to all its regulations in constructing or 
 repairing any of the said rail roads, or other necessary works or 
 buildings, which may? or can be constructed within the limits of the 
 State of Maryland, and in transporting persons, goods, merchandise, 
 or property of any description, along any of said roads, and that the 
 provisions of this act shall be wholly in force, as to all the property 
 of the company, which may be situated or may be within the State 
 of Maryland, and which said company is permitted to hold under 
 this act. 
 
 22. And be it enacted , That if said road shall not be commenced 
 in two years from the passage of this act, and shall not be finished 
 within this State, in ten years from the time of the commencement 
 thereof, then this act shall be null and void. 
 
 23. And be it enacted , That full right and privilege is hereby 
 reserved to the citizens of this State, or any company hereafter to 
 be incorporated under the authority of this State, to connect with 
 the road hereby provided for, any other rail road, leading from the 
 main route to any part or parts of this State, provided that in form¬ 
 ing such connection nu injury shall be done to the works of the com¬ 
 pany hereby incorporated. 
 

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