State ex rel. Haydon v. Curry

Opinion by Beatty, J., Bbosnan, J., concurring. This is an information in the nature of a quo warrcmto instituted against the defendant, requiring him to show cause why he exercises the franchise of collecting tolls on a road leading from Carson City to Empire. He justifies and claims the right to collect tolls under the provisions of an Act passed by the Territorial Legislature of Nevada on the 9th day of February, 1864. The first section of that Act grants the right to A. Curry and his associates to construct a macadamized road from Carson City to Empire. The second section is in these words: “ Section 2. The above grantees shall, within thirty days after the passage of this Act, cause a survey of said road to be made, and shall have such survey recorded in the office of the Recorder of Ormsby County, and shall, within six months from the passage of this Act, complete one mile of said road, commencing at Carson City, and shall, within six months thereafter, complete the entire road; and if they fail to comply with the requirements of this section they shall forfeit all rights acquired under this Act.” The proof before us shows that Curry (or he and his associates) opened the road between the termini thereof in the year 1864; that he hauled rock on about one-half thereof. The rock hauled on was coarse, large pieces of sandstone. To make it fit for travel, dirt was mixed with it, and the dirt [252] and stone have now become worn down smooth, and make a good road. Considerable work was also done digging ditches and throwing up the dirt to make a solid foundation for the road. Upon about one-half of the road no stone has been hauled. This part of the road upon which no stone has been hauled is generally sandy, and not liable to get muddy, but in dry weather becomes heavy and difficult for freight teams. Curry has scraped the light sand off the road in various places, and very much improved it. In many places, where the natural surface was a loose, shifting sand, he has scraped the road down to a substratum of sand and gravel, far superior as a road bed to the natural surface. By the labor of Curry the road has been greatly improved. But still it falls far short of a maoadamized, road. In Winter one end is obstructed by bad mud-holes. In Stunmer the other end has heavy sand on portions of it. The defendant claims that he has complied with the terms of his charter, and is collecting tolls on the road described in the Act. A macadamized road is a technical term well understood by all intelligent road builders and scientific men. Such a road is thus described in the American Cyclopaedia : “ To form a true macadamized road the following principles must be fully understood and acted upon; that it is the native soil which actually supports the weight of traffic; that while this soil is preserved in a dry state it will carry any weight without sinking, and that it does in fact carry both the road and the carriages; that this native soil must be rendered quite dry by a thorough draining from all under water, and a covering impenetrable to rain must then be placed over it, to preserve it in that dry state; that the thickness of a road should only be regulated by the quantity of the material necessary to form such impervious covering, and never by any reference to its own power of carrying weight. “ This covering or roof of the soil must be made of clean, dry stone, broken into small fragments, each not exceeding six ounces in weight, about the size of a pigeon’s egg, which must be so prepared and laid as to unite by its own angles into a firm, compact, impenetrable body. This caiinot be [253] effected xmless tbe greatest care be taken that no earth, clay, sand, chalk, or other matter that will hold or conduct water, be mixed with the broken stone. A road perfectly made on these principles completely excludes water, and therefore never can be affected by the action of frost. The thickness of the stratum of broken stone should never be less than seven nor more than ten inches, and the surface should be made nearly flat, never having a greater slope from the center to the sides than an inch in every five feet, which will be ample to carry off all rain.” It cannot be claimed that this road is a macadamized road. For half of the distance it has not the semblance of such a road. "Whilst the Court is reluctant to come to a conclusion which deprives Mr. Curry of his labor and expenditure, it cannot, without a violation of all principle, and encouragement of wrong, allow a party who enters into an engagement with the State to perform one-half or one-fourth of what he is legally bound to perform, and then claim the same rights as if he had performed the whole. Judgment must be entered in favor of the State, depriving the defendant of the franchise by him claimed, and forbidding him to collect tolls on the road named.