The Chancellor.
By the act incorporating the Elizabeth-Town and Somerville railroad company, the president and directors of the company are authorized to lay out and construct a railroad from Elizabeth-Town to Somerville, and by a supplement to the original act they may extend file road to the Delaware river. For this purpose, liberty is given to them, their agents and others in their employ, at all times to enter upon any *432lands in their route, for the purpose of exploring, surveying and laying ontjthe road ; but they are forbid, in express terms, from proceeding to excavate, to lay their rails, or in any way to take permanent possession of any lands (except by consent of the owners)' until they pay or make a tender pf payment to such owner, all damages which such occupancy shall occasiou. And in cases where the company cannot agree with landholders, a further provision is made for the appointment of commissioners, by one-of the justices of the supreme court, to assess the damages, The complainants, in this bill, state themselves to be the devisees in remainder of John Ross, of a lot of land on the route of this road, of which their mother, Martha Ross, is in possession as tenant for life, under an assignment of doWer. The will of their father is set our in the bill, and the provisions thereof are plain and according to the complainants’ statement. It is then charged, that the defendants have actually enteied upon the said lot, and are proceeding to remove the fences and to make the necessary excavations, and thus to commit an irreparable injury to their property, without first paying or tendering payment of damages, according to the' provisions of their charter. Upon this case, the master to whom application was made granted an, injunction, restraining the defendants from taking possession of this land until the court should otherwise order. The case presented by this bill was a plain one for the interference of this court, nor, indeed, has any thing to the contrary been urged by the defendants on the argument, except that they feel themselves aggrieved at being thus stopped in their operations, without being notified of the application for t.he injunction. I agree that it is the dictate of propriety, in cases like the present, to direct notice of an application for au injunction to be given, whenever it can be .done and save the complainant from the injury which he seeks to avert; but there are a great’ many cases continually arising, where to take this course would defeat the great end in view, that of preventing an injury. In this very case, the bill charges that the company had actually-entered upon the land, and were proceeding to excavate. Had notice been given, all *433the injury might have been inflicted before the day for hearing arrived. While, therefore, it is to be carefully looked to, that the operations of a company in the construction of a great work of public convenience be not suddenly stopped without a case presented of an urgent and pressing necessity, ■ yet I do not see how the master could, in the present instance, have secured the complainants in their rights, without making the exparte order. If the doctrine so strongly urged, that notice upon every application for an injunction must be given, is to prevail, it would be better to go farther, and put an end to the whole power of the court in granting them at all. It is admitted to be a delicate power, which calls for great firmness and discretion in its exercise ; but it is at the same time, as all must agree, an indispensable power to reside somewhere.
The defendants have answered this bill, and have further obtained an order allowing both parties (o take affidavits, and the motion to dissolve the injunction has been fully heard upon the answer and affidavits. The case made by the defendants may be thus shortly stated. Martha Ross, the widow, being in possession, the company supposed she alone had the right to the property, and they went on under their charter, got commissioners appointed, who awarded to her thirteen hundred dollars, the entire damages to the propeity, and which they have paid to her and taken her receipt. That the commissioners have assessed the damages under the belief that Mrs. Ross had a fee in the lands, and that the officers and directors acted under that impression, cannot be doubted, for they all so positively swear. The company, then, have gone on in good faith, and obtained, as they supposed, in legal form, the right to lay their road on the land in question.
It is not contended that the company have a right to take land for the road upon a settlement with the party holding the present interest. Such a construction would be opposed to the intent and object of the provision, which designs nothing more nor less than that the land to be occupied by the line of the road shall first be paid for, and to those who have rights in the same. *434Those in remainder have therefore as strong, and in many cases1 a much stronger claim for damages than the present occupant.The words of the act also favor this construction ; for in the seventh section, upon the application to a justice of the supreme court for the appointment of commissioners, a description of the property is required to be given to such justice, with “ the name of the occupant and owner or owners.” The claims of all persons having rights in the land are clearly to be satisfied, as well those who have the reversionary interest as those having the present estate. Nor is there any pretence that any proceedings-have been had directly with the complainants, and for the reason that the defendants do not appear to- have understood how the title to the property stood,- or that any other person than the widow had a claim to it.
The only serious question raised- by the defendants, is, that these complainants, who are the children of Martha Ross, and' several of whom have acted for her in obtaining damages from the company, stood by and saw the company go on blindfold,under a conviction that their mother had the estate in fee, and that after- having thus acted and concealed their title, they have-forfeited all claim to the equitable interference- of the court. A number- of cases were cited, establishing beyond question the-doctrine,- not merely that the court will refuse its aid to a party who fraudulently misrepresents his title, but if he observes a silence when duty and candor and fair dealing require him to speak out. The case in 2 Atkyns, 49, was of this character.There the mortgagee stood by and saw the lands agreed to be settled by the mortgagor to secure the terms of a marriage contract, and fraudulently concealed his mortgage r it was held that the land should be held against the mortgagee and his heirs. So-in 2 Atkyns 83, where a person having title to land suffered another to>go on and erect buildings upon it under a mistake, without informing him- of his error, and when he knew he was doing so under a mistake, it was decided that the land should be held without disturbance from this title. The doctrine is fairly stated, and the cases referred to, in 1 John. Chan. 354. The *435chancellor, in that case, says, “ There is no principle better established in this court, nor one founded on more solid considerations of equity and public utility, than that which declares, that if one man knowingly, though he does it passively by looking on, suffers another to purchase and expend money on land, /«rider an erroneous opinion of title, without snaking known his claim, he shall not afterwards be permitted to exercise his lega! right against such person. It would be an act of fraud and injustice, and his conscience is bound by this equitable estoppel.” In 1 Story’s Equity, 379, the same principle is recognized, and it is said to proceed on the ground of its being a constructive fraud. There is something in this doctrine which must meet the approbation of every intelligent roan, and its application to the case before us is striking. If, therefore, these complainants have stood by, concealing their title, and have seen the defendants taking steps to ascertain the damages to be paid their mother, under a mistaken idea that she was the sole owner, and have not undeceived them, even though they may never have been inquired of respecting it; (hey cannot, under the authority of the cases referred to, and should not, have the aid of this court now to enforce a further payment to them, or to embarrass the progress of the company. This being the true principle which must govern this case, the decision must turn entirely upon the state of the facts. Did the complainants conceal their title from the defendants, or not ?■
On the part of the defendants, as well by the answer as by the affidavits of the officers and directors, it is manifest that the company have acted under a total misapprehension as to the true state of things respecting this land. "They supposed Martha Ross was the owner in fee, and accordingly treated with her in that, right. The commissioners certainly made their award under that idea, and the complainants, or some of them, acted as the agent of their mother, and advised in all her proceedings. The affidavits of those who acted on the part of the company, are explicit that they acted throughout under this mistake, ¡aofi >thcy deny having received any information to the -contrary. If *436the evidence stopped here, there could be no hesitation in putting an end to this injunction; but we aie to look to the affidavits presented on the other side, and I must say, if those affidavits 0 are correct, there has been the most unaccountable blindness on the part of the managers of this company that I have ever witnessed. They must have shut their eyes fatally to their own interest, or they surely would never have gone against knowledge to their own injury. I can reconcile the affidavits on the part of the complainants, with the course of the defendants, in no other way than by supposing, if the information was ever communicated to them, it passed from their memory. The affidavits on the part of the complainants, show that the situation of the title to this property was no secret; every person in the neighborhood knew it had belonged to John Ross, and was assigned to Mrs. Ross as her dower right. All the witnesses concur in this. They show that John W. Bray, who at one time acted for the company, and in one case, as testified to, obtained an agreement for land under which they have entered, was informed of the true condition of the title to this property, and made full inquiry into the situation of the family. This evidence is not contradicted. They show, and by several witnesses, that at the time the commissioners were appointed by the chief justice, the subject of the title not being in Mrs. Ross was spoken of, and the witnesses say it was assigned as a reason why a settlement could not be made at that time, as only one of the heirs was present; that it was stated publicly in the room where a number of those interested in the company were, and was spoken of as a thing well understood by all. They show,'that when the commissioners met, judge Stites, one of the commissioners, asked John Ross, one of the sons, if the title of the lot was in Mrs, Ross, and he answered that it was not; that Mr, Parker, one of the commissioners, then said, it was not their business to try titles, but to ascertain the amount of the damages. Judge Stites, in ]his deposition, admits that he did make the inquiry about the title, and was informed that it was not in Mrs. Ross, but that something was said which gave a check to further explanation, *437and he did not press the inquiry, supposing it might involve a question of delicacy between Mrs. Ross and her children. O. Morton, in his affidavit, says, that in the month of April he had a conversation on this subject with judge Taylor, (who is admitted to have been among those authorized to act on the part of the company.) who said he was aware that Mrs. Ross could not make a valid title to the property, the fee simple not being in her, and therefore they had taken another course and obtained possession through commissioners. John H. Voorhies, another witness, says, that at the time the commissioners met he had a conversation with William Thompson and John J. Bryant, who were acting for the company, or one of them, and he thinks with both, and told them that the fee simple of the land was not in Mrs. Ross, that she had only a life right, and that they manifested no surprise at the information, but seemed to be aware of it; and he thinks he has on other occasions mentioned the same fact to them. Another witness also states that he communicated the same information to Mr. Kellogg, who was acting in behalf of the company : and Mrs. Ross swears, that she on more occasions than one, gave the agents of this company notice, that she did not own the fee of this land, but that it. belonged to her children ; and several of the complainants have also sworn, that they never have asserted to any person that their mother had the title, or concealed the true state of facts respecting the property. This is the outline of the complainants’ affidavits. Opposed to all this, the agents of the company declare they never did receive the information that the title was not in Mrs. Ross, but always acted under the belief that she had the entire right. There is a most palpable contradiction in the affidavits, and which 1 confess I am wholly unable to reconcile.
Without being able to harmonize this evidence, and without meaning to say which is right and which is wrong, I cannot feel myself at liberty to reject all this testimony, and to declare that the complainants have concealed the situation in which this property stands, so as to forfeit their claim to the aid of this court. There is too much affirmative .evidence to justify me in such a *438course. That the complainants have not acted with that 'becoming frankness which they should have done, is impressed forcibly upon my mind ; but still, if the subject was talked of at the time the commissioners were appointed, and at the time they met, was repeatedly slated by Mrs. Ross, and more especially if there be any truth in the repeated instances named in which the information is said to have been communicated to the agents of the company, then, certainly, it is going too far to say that there has been such -a concealment as to defeat the complainants on the ground of fraud.
The complainants, then, in my view of this case, are entitled to have their damages paid or tendered, before the defendants can lawfully take possession of the land, unless it be shown that they have been guilty of a fraud in concealing their title; the evidence not being satisfactory on that point, I do not feel myself at liberty to dissolve the injunction.
There is one fact that should be referred to, and that is, that the complainants delayed giving a written notice of their claim until their mother had been paid, and then promptly served one. This has a bad appearance, and can only be excused on the ground that, until that took place, they were in no danger that the company would enter upon the land. This part of the case must still depend on the question already decided, whether the complainants practised a fraud by concealing their title.
Motion to dissolve the injunction denied. Costs to abide the event.