President, Directors, & Company of Croton Turnpike Road v. Ryder

The Chancellor. The plaintiffs have shown a clear and undisputed right, by statute, to the taking of toll at the gates, and for the use of the turnpike road mentioned in the pleadings. They were, likewise, at the commencement of the suit, in the actual possession and exercise of that exclusive right; and the question is, whether the establishment of the open and common road, designated on the map by the figures 1, 2, 3, be not a disturbance of that right, amounting to a private nuisance. There can be no question as to the right of the plaintiffs. It was given to them by the acts of the legislature of the 13th of March, 1807, and 18th of March, 1808 ; and it is shown and admitted, that they conformed to the conditions upon which the grant was made. The road was duly laid out, and report duly made by commissioners appointed according to law, and the gates were then erected in pursuance of the governor’s license. The road, as worked and constructed, was also established by the act of the 8th of April, 1811. The defendants admit that they combined together to purchase jointly of William Haight, the strip of land on which the road marked 1, 2,3, complained of, was establish [615] ed and opéned. They admit the consideration of ,250 dollars was raised bv contribution, and a deed in fee taken v to all of them, except Frederick Graham, on the 10th of December, 1811. They admit that they purchased the land to be laid out as a road for their benefit, and because it would be a public advantage. They admit that this new road has not been established' as a public road •, and that the distance by that road from A. to D., on the map, is only 4 chains and 1 link shorter than the distance between the same points by the way of the toll-gate. They admit that the new road has been kept open for public use and travel, and maintained as such by private expense, by not impeding travellers from using it; and they admit that this road may, and does, enable persons to avoid passing through the gate and paying toll to the plaintiffs. After these admissions, it is in vain for the defendants to allege that the road was established without any views injurious to the rights of the plaintiffs. The facts speak for themselves ; and I think it is impossible for any person to cast his eye upon the map, which is made an exhibit in the cause, without being struck, at once, with the conviction, that the injury is direct, palpable, and inevitable, and that, if no such turnpike gate existed, no such new road would have been purchased, made, and kept open. It is, then, a plain case of a matérial and mischievous disturbance of the plaintiffs in the enjoyment of the statute privilege, which was granted to them by the legislature for public purposes, and founded on a valuable consideration. The only question, is as to the remedy, and this appears to me to be equally certain. It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statute privilege, of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. (Bush v. Western, Prec. in Chan. 530. Whitchurch v. Hide, 2 [616] Atk. 391.) But I need not enter into this discussion, for the point has been recently settled in this state, in the case of f ■ J ’ Livingston and Fulton v. Van Ingen and others, (9 Johns. Rep. 507.,) and I shall rest upon the authority of that case, and upon the application of the principles on which it was decided. The equity jurisdiction in such a case js extremely benign and salutary. Without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion. If such a contrivance as this case presents, is to be tolerated, all our statuteprivileges of the like kind, on which millions have been expended, would be rendered of little value, and the moneys have been laid out in vain. I shall, accordingly, decree, that the defendants be perpetually enjoined from opening or using, or permitting to be opened and used, as a road for public use or travel, the road designated on the map by the figures 1, 2, 3; and that the same be closed up so as to hinder persons travelling on the turnpike road from using it as an open road j and that the defendants, except Frederick Graham, pay the costs of this suit 5 and that the hill, as to him, be dismissed.