Fowler v. Pratt

Williams, C. J. In this case the court are called upon to investigate a question, which was presented to their consideration and decided in this county, in March, 1833, and in relation to the rights of the same corporation, whose treasurer now brings this suit. The case is not reported, but it cannot have escaped recollection that the points, now raised, were then raised, discussed and decided. The question is, whether the Royal ton and Woodstock Turnpike Company, having once erected a gate or gates on their road, have a right to remove them, or whether the gates must be considered as fixed and established, however important it may be to the interest of the corporation to change their location. [381] There is nothing in their charter which requires that the gates should be thus fixed, or prohibits the company from removing them. On the contrary, they were authorized to erect any additional gates, averaging the toll, and not receiving any additional toll. The power of thus removing gates has uniformly been exercised by -many, if not all, the turnpike corporations in this state, and, without this power, their grants would be rendered in many cases wholly inoperative. And moreover the right so to do was recognized by this court in the case of the Treasurer of the Royalton and Woodstock Turnpike Co. v. Hutchins, decided in March, 1833, and before referred to. If there are any decisions of any of the state courts which conflict with the decision made in the case mentioned, that must govern, unless it was manifestly wrong. In the case of Griffin v. House, 18 Johns. R. 397, the question before the court was not whether the company might remove their gate,and, in the remarks made by the court, they conceded that a gate might be removed if there was a strong and manifest necessity to warrant it. In the case from 5 Conn. R. New series, State v. Norwalk and Danbury Turnpike Co. 163, the court lay stress on the words of the act “ to erect and establish gates”, &c. It would be very desirable to find the decisions in the courts of the other states agree with ours, and they will always receive a respectful attention, and we should feel a strong disposition to coincide with them, where the-same question has been considered and decided, yet we should not overrule an adjudged case in our own courts, because a different decision could be found in the reports of other states. It would not be very surprising if this subject should be viewed differently in different stales, but we see nothing at present to change the views which were formerly taken in relation to this turnpike. By the grant the company had a right to make the road between the termini, and erect gates thereon, and demand and receive toll of those who passed them. Every individual had the right to travel on the road without paying any thing therefor, unless he was intercepted by a gate. It is so far a public highway, that the company are liable.- to an indictment for not keeping it in repair, although not expressly made so in the grant, and individuals would also be liable to an indictment for a nuisance thereon. But for [382] all damages done to individuals, by reason of its insufficiency or want of repair, the company are liable. It has sometimes been contended that a grant of a turnpike gives an exclusive right to make a road between the termini. It is not, however, so, unless expressly so declared in the grant. A public highway, or even another turnpike, it is said, may be granted so near to the one made as to injure or render valueless the former grant, if the public good so require, but it has never yet been decided or contended for, except in this case, that when a turnpike road or toll bridge is made by stockholders, by virtue of a grant from the legislature, either a public road or another turnpike can be laid directly on the road or bridge thus made, so as to make it a public road or bridge, or to transfer the latter to the proprietors of the former. The defendants are, therefore, not protected by their character as selectmen, nor can they derive any benefit from the laying out-the road by the committee appointed by the supreme court, nor by the vote of the town. Much has been said on the doctrine of prescription in the present case. But we cannot see its application, nor can I readily perceive, who are intended in the argument by the public, as acquiring or losing any rights. A road may be said to be dedicated to a public use, and the evidence of this may be either by grant or prescription. In this case the grant by the legislature to the Royalton and Woodstock Turnpike Co. has been accepted, and is now used and enjoyed. There is no obscurity in the grant, nor any difficulty in interpreting it. The legislature have not undertaken to resume any thing granted, nor have the company surrendered any thing which they then acquired. If they ever had the right to remove their gates, they still have it. The road, as made and surveyed, still belongs to the company. They are required to keep it in repair, and are answerable for any damages which may arise in consequence of its being out of repair. It is insisted, however, that there is a right in individuals to make use of all the road, if they can escape the gates, and that the right to do so is established by usage. It might be urged with as much propriety, that, because the company, until the year 1835, could exact tolls of all who came on the Barnard road and entered the turn [383] pike, they have, therefore, acquired a right so todo, and that the removal of the gate was only to secure the enjoyment of that right. The right of the company is to exact toll of all who pass their gates, and it is the right of individuals to travel the road without being subject to any charge, except when they pass the gate. This arises from the nature of the grant, and the doctrine of presumption and prescription is wholly inapplicable. It is objected, that this power maybe abused. But because a power granted may be abused, it is not to be said that it is not granted. If it was an improvident grant, this court cannot, on that account, destroy it. . We do not see, however, that the power has been abused, or that it was improvident. Grants of turnpikes have not been frequent of late. They were made at an early day when there was some necessity to have the aid of individual exertions and property to secure roads any way tolerable. Those, who embarked in them, have not generally found that they made a very profitable investment of their funds. They should enjoy all that was given them by their charter, without any attempt to evade or destroy their grant, and if subtlety and ingenuity are taxed to enable people to use and travel the whole length of the road, passing round the gates in a free and public road, leaving the company at the expense of keeping it in repair, if they cannot be met by a corresponding ingenuity and subtlety, they may at least be rendered ineffectual by a legitimate use of the powers granted. We are not to suppose, however, that there will be flagrant abuse of the rights or powers which appertain either to the towns or companies. When it does happen, the parties will undoubtedly find a remedy. It is not for the court to suggest one. • I have a word to say in relation to the decision in the case of Hutchins. I was not present when the opinion of the court was given, and, therefore, cannot know what was said by the learned judge who delivered the opinion of the court, nor have'we been favored with the copy of that opinion. But, from his known accuracy and intelligence, it is impossible that he should have placed the case on the grounds supposed by the defendants5 counsel. The question then to be determined, which was argued, and which was previously argued in the county court, was as to the right of the company [384] to remove their gates. That right was recognized and established, and of course conflicts directly with the claim now set up that the gates cannot be changed, and is decisive that no right is acquired, by usage, prescription or by the doctrine of presumption, to have them remain in the places where they have been erected. If they can remove the gates, it can make no difference whether it is done to intercept travel on a path made by individuals or laid out by authority. I was present when the case of Hutchins was argued and decided, but I left the court before the decision was declared The judgment of the county court is afflrméd.