Hooker v. Utica & Minden Turnpike Road Co.

By the Court, Nelson J. It seems to me that if the facts offered to be proved by the defendant had been established on the trial, the plaintiffs would not have been entitled to recover the penalty sued for, within the spirit and meaning of the act. Whatever dormant rights might still have belonged to the company, after having so long abandoned the road, and neglected to keep it in repair and suitable condition for the public use, and after having given it up to the possession and occupation of the owners of the land through which it ran, it would be allowing the company to take advantage of their own negligence and wrong, to permit them to profit by enforcing the penalties given by the statute. The owners of the lands through which the road ran had good cause for believing that [373] the corporate rights of the company had been voluntarily surrendered, and that the lands had reverted to the original owners. Although the act of incorporation vests in the company the title to the lands over which the road passes, on compliance by them with the provisions of the act, such title must nevertheless be considered as vested only for the purposes of a road, and when the road is abandoned, the land reverts to the original owners. We do not think this point necessarily turns upon the question whether the company have forfeited their charter, if they have so conducted as to fairly warrant the belief in the individuals through whose lands the road ran, that they had abandoned their charter, they ought not to be permitted to enforce the penalties given by the statute under which this suit was brought. The evidence offered by the defendant ought to have been received. The judgment must therefore be reversed, and a venire de novo must issue.