delivered the opinion of the court.

The complain against the charge to the jury is, that it places the rights of the company upon too narrow ground.

1. In holding that the company, by virtue of their charter, occupies no other or higher ground than other citizens.

2. In declaring that the rights of other persons, upon the highway, are paramount to the rights of the company.

*4411. The charge neither expressly nor by fair implication denies to the defendants the full exercise of their corporate rights and franchises. It nowhere calls in question, the general principle, that the legislature, in the grant of a franchise, must he presumed to have granted all the powers and privileges necessary to carry into effect the powers granted. Eor does it deny that the legislature may by law authorize an act to be done which would otherwise he a nuisance. But before these principles can at all avail the defendants in making their defence, it must he shown that it was necessary for the enjoyment of their franchise, that the company should permit their cars to stand in the highway.

It is admitted, indeed, that the freight could not he received and discharged at the Eockaway depot, in its present location, without to some extent impeding the public travel, and that the defendants have not wilfully caused any obstruction beyond what their business at tbi depot required. The necessity of obstructing the highway results not from the exercise of their corporate rights, but from the improper location of their depot. A station house and freight depot may be necessary to the operations of the company. It, may he necessary .that the cars should stand half an hour, or an hour, to receive and discharge freight. But there is no necessity that the depot should he so located as to cause an obstruction of the highway by the cars. The company cannot, by their own imprudence, create a necessity for the obstruction, and then justify the nuisance on the ground of the necessity which they have created. Because a depot is necessary to the operations of the company, they are not therefore justified in building it upon the highway, or so near it that their trains must injuriously obstruct the public travel.- The fallacy of the argument on the part of the defendants consists in assuming that placing the depot in its present location was a matter of necessity. - There is no evidence *442to,support the assumption. The location of the depot was obviously not a matter of necessity, but of convenience. The judge expressly instructed the jury, that if the company could not obtain another location, a different rule might apply.

■;2. It is said the charge is erroneous in stating that the rights of other persons upon the highway are paramount to the rights of the company. The precise language of the charge is — “ The whole. community are interested in the highway. Every citizen and every traveller has a right to a free passage over it; and their rights, so far as is necessary for the settlement of this case, are paramount to the right and convenience of the company, and of the inhabitants of Rockaway and its vicinity.” The right of the company, under their charter, to use the public highway for .the mere purpose of transit, was not the matter in question. That was not necessary for the settlement of this case. No comparison, therefore, was made, or inténded' to be made, between the rights of the public and the rights of the com- . pany to the use of the highway for the purpose of passage. It had previously been stated by the judge, in .his charge, that the company had a right to construct a depot; that, iix one sense, it was a right of the citizens of that xxeighborUiood to have a depot, and that it might be a convenience to the company and the inhabitants of that vicinity to have it in the spot where it was located; but that the company were bound so to locate the depot, that they could receive and discharge freight and passengers without injuriously interfering with the use of the highway by the public. And in this sense, the light of the public in the highway for the pui'pose- of travel was paramount to the light and convenience of the coihpany and the inhabitants of that vicinity, in the location axxd construction of their depot.

Whether the cars did, in point of fact, injuriously obstruct the public travel, and thereby become a nuisance, *443was a question of fact, which was properly submitted to t 3 jury for their determination.

There was no misdirection in the charge. The law was fairly stated, and in a mode of which the defendants have no ground to complain.

The Oyer and Terminer should be advised accordingly.