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The decision in Johnson v. Lake Drunmond Canal and Water Company (I919. Va.) 99 S.E.771, seems both unjust and unnecessary. It appears that in 1787 the Virginia legislature incorporated a canal company to erect a canal which should "forever after" be a public highway, free for transportation of goods and for travel on payment of the tolls imposed by the act of incorporation. In 1839 another act was passed authorizing the same company to construct an outlet from its canal to the Elizabeth river and granting it the power of eminent domain, provided, however, that the proprietors of abutting land should have free passage through the outlet. Prior to the construction of the outlet these lands either bordered on or were intersected by navigable creeks or streams reaching deep water and thus giving deep water access. The building of the outlet or canal completely destroyed these creeks or streams and the proviso of the Act of 1839 was inserted in order to give abutting proprietors deep water access through the canal in place of the access which was being destroyed. Soon thereafter the outlet was completed and the privilege of passage has been used by abutting proprietors, deep water access adding greatly to the value of the lands. In 1851 a railroad was given permission by the legislature to erect drawbridges across the outlet, but so as not to hinder, obstruct or delay passage of any craft on the canal; and if any such inconvenience resulted from the construction of the road, it was to be declared a nuisance and abated by the circuit court. In 1916 the latter portion of this Act was repealed and defendant canal company, who had succeeded the original canal company, was authorized by the legislature to abandon maintenance and operation of this portion of the canal or of so much of it as it deemed desirable. The defendant canal company has now sold to the defendant railroad the privilege of crossing the outlet by a permanent fill, bridge or obstruction and the railroad proposes to cross the outlet in this manner, so as completely to shut off all passage through it at the point of crossing. The plaintiffs, abutting landowners, bring this bill for an injunction which the court dismisses on the defendants' demurrer.

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Due Process and Injuries from Termination of Franchise, 29 Yale Law Journal 431 (1920)

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