State ex rel. Buckley v. Curry

By the Court, Lewis, C. J.: By an Act of the Legislature of the Territory of Nevada, approved February 9th, A. d. 1864, the defendant Abraham Curry and his associates were siuthorized to construct a macadamized road between Carson City and Empire, and after its completion to collect tolls from all persons traveling over it. Claiming that he had constructed such road as the law required, Curry collected tolls as authorized by the Act; but in the month of May, A. D. 1865, the franchise thus claimed by him was declared forfeited by this Court. On the third day of June following, however, he sought to maintain his privilege of collecting tolls by complying with the requirements of an Act of.the Legislature, entitled “ An Act to provide for constructing and maintaining Toll Roads and Bridges in the State of Nevada,” approved March 8th, 1865. (See Statutes of 1864-5, 254.) Section twelve of that law declares that “ no toll road, constructed under the provisions of this Act, nor otherwise, shall interfere with any road or highway now in general use by the traveling public or the emigration from the East.” It is quite clear, if at the time Curry endeavored to secure the road by virtue of the provisions of this last Act, it was a “ road or highway ” in general use by the “ traveling public,” it could not be taken under this law. That it was so can scarcely admit of doubt. On-the thirty-first day of May, Curry was deprived of his franchise, the Court holding that he had not complied with the law [77] granting it, and consequently that he never acquired the right to collect tolls. (1 Nev. 251.) Thereupon the road either became a general public highway, or by virtue of section seven of the same law it became the property of the county. In either case, Curry had no right to continue the collection of the tolls. That section declares that “ upon the expiration or forfeiture of any toll-road franchise, the ownership, with all the rights and privileges, shall vest in the county or counties in which it is located, and the county commissioners may declare it a free highway, or they may collect tolls on such roads to keep them in good repair.” Por a period of three days at least — that is, between the time of the forfeiture of the charter and the third day of June — this road was the property of the county, and whether any tolls whatever should be collected on it or it should be a free highway, was a matter resting entirely with the county commissioners of Ormsby County; but they never authorized the collection of tolls on it, therefore it must be held that they intended to leave it a free highway. However, if that had been done by them it would not help the defendant here ; for he does not attempt to justify by any right in or derived from the county, but claims the privilege in himself by virtue of compliance with the provisions of the Act already referred to. Under that Act, as we have shown, he acquired no right, therefore the collection of tolls by him is unauthorized. Judgment of ouster must be entered.