State ex rel. Boardman v. Lake

— 281 — By the Court, Whitman, C. J.: This appeal is from a judgment of ouster touching a certain franchise claimed by the State to have lapsed. Lake, the appellant, in 1862 was authorized by the Territory of Nevada, through its legislature, to take toll for ten years on a certain road, which he was to construct according to the terms of the statute for that ease made and provided. An important constituent part of that road was a bridge, known as Puller’s bridge, which Lake then held under purchase from Puller, which was and is the point for toll collection for passage over or along the road. Stats. 1862, 19. That the legislature had the power to grant this franchise is not disputed; it is a necessary adjunct of the confessed duty of the legislatures of states and territories, by themselves or others, as a matter of necessity to the public to construct roads and highways. Lake v. Virginia and Truckee R. R. Co., 7 Nev. 294. The road was entirely built on the public lands of the United States; and it is unnecessary here to examine the question whether or no there is any difference between the position of the federal government in this regard and that of any private landed proprietor, as the government has by direct legislation assented to and granted a general easement. “The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.” U. S. Stat. 26 July, 1866; Brightley, 404, Sec. 104. The case then stood in 1862 thus: Lake agreed with the territory to build and keep in good repair a road, of which the bridge mentioned was a principal component part; and the territory gave him the right to take toll for passage over and along that road for the term of ten years. As a natural and legal conclusion, it would seem that at the expiration of such term the control of the road would revert to the sovereign which originally gave the right to a private party to construct it for the public use, which was an exercise of power inherent in and belonging only to the sovereign; and that no special disposition being made, the free use of such — 282 — road would be in tbe people thereafter. Acting evidently upon this supposition, too clear for argument, the legislature of the State of Nevada, successor in power to that of the territory, passed in 1864-5 an act which covers this case, in which among other things it is provided, “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; provided, the county commissioners may extend the time of any expired franchises, so as to allow the owners thereof to collect tolls thereon for five years, subject to all provisions of this act.” Stats. 1864-5, 256, Sec 7. There has been no extension of time and the County of Washoe desires to take possession of this road; but appellant not recognizing the section quoted as applicable to his case, claims under sections one and two of the act referred to, to have on the sixteenth day of December, 1872, the day before the expiration of his franchise, located a new toll-road. Those sections are as follows: “Sec. 1. Any person or persons desiring to construct and maintain a tol-lroad within one or more of the counties of this State, shall make, sign and acknowledge before some officer entitled to take acknowledgment of deeds, a certificate specifying — first, the name by which the same shall be known; and, second, the names of the places which shall constitute the termini of said road. Such certificate shall be accompanied with a plat of the route of the proposed road, and shall 'be recorded in the office of the county recorder of the county or counties within or through which such road is proposed to be located, and the record of such certificate and plat shall give constructive notice to all persons of the matters therein contained. The work of constructing such road shall be commenced within thirty days of the time of making the certificate above mentioned, and shall be continued with all reasonable dispatch until completed. — 283 — “Sec. 2. On complying with the provisions of the preceding section, said person or persons shall have the right to construct, complete and maintain a toll-road over the route and between the termini mentioned in such certificate, and establish and collect such rates of toll thereon as he or they may deem proper for the term of ten years ******•.” There is no question but that the formalities of the act have been complied with by appellant, and that he has located his claim for a toll-road upon the exact site of the one built by him under the act of 1862. Passing the inevitable inference from the language cited, that new roads and only new roads were contemplated by the legislature, section 12 of the act uses these express words: “See 12. 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.” And if this be not sufficient, section 9 speaks thus: “Sec. 9. All franchises granted for toll-roads by the first legislature of this State may be lqeated under the provisions of this act.” Upon the maxim adrriissio unius, exdusio alterius, the act' which admits the location of toll-road franchises granted “by the first legislature of this State,” excludes the location of any other; and it is not claimed that this is such franchise. It is said, however, notwithstanding this .apparent clearness, that the right existed in Lake to locate a toll-road on the site of the old road, because that was not a “road or highway now in general use by the traveling public,” for the sole reason that it was a toll-road. Such is not the law. “The only difference between this and a common highway is, that instead of being made at the public expense in the first instance it is authorized and laid out by public authority and made at the expense of individuals in the first instance, and the cost of construction and maintenance is reimbursed by a toll levied by public authority for the purpose. Every traveler has the same right to use it, paying the toll established by law, as he would have to use any other public highway.” — 284 — Commonwealth v. Wilkinson, 16 Pick. 175; Angell on Highways, Secs. 38-40; State ex rel. Buckley v. Curry, 6 Nev. 75. Further objecting to surrender, appellant shows that since the date of the grant of 1862 he has acquired title in fee to the land on which the ends of the bridge rest and on both sides thereof, and also to a portion of the land on which the road is located. Precisely when this title was obtained does not appear, nor does it matter, as it is not necessary to resort to the principle of prescription in this case. Appellant’s title can avail nothing in this contest; his possession of such title, and the possession by the public of the easement of traveling the road, are in no sense antagonistic. The public does not claim the fee, and it rests intact in Lake, subject only to the easement named. This easement could have been raised in various ways, which need not here be specified, but was actually here fixed by the solemn dedication of appellant. No court has ever in its utmost strictness called for more conclusive evidence of dedication than is presented by the statutory contract of 1862 and the acts of appellant thereunder, making it absolute, fixed and executed. Lade v. Shepherd, 2 Stra. 1004; Connehan v. Ford, 9 Wis. 240; Cincinnati v. Lessees of White, 6 Peters, 435; Hobbs v. Lowell, 19 Pick. 405; Daniels v. People, 21 Ill. 439. On the same principle appellant’s claim to a perpetuity of franchise in the right to take toll on the bridge falls. This right it is asserted was granted to Fuller By one assuming to act as probate judge of Carson County, Territory of Utah, after the erection by Congress of -the Territory of Nevada, within the boundaries of which was included the ground where this pretended judge was acting. Admitting for the nonce that such an officer had or under any conceivable circumstances could have had such a power, which on its face is monstrous, and that such franchise could stand after the adoption of the State constitution, which provides that “No perpetuities shall be allowed except for eleemosynary purposes” (Const. Art. XVI, Sec. 4.); yet it is evident that his action herein was void as without authority; for — 285 — this is not a case, as argued by counsel for appellant, of the action of an officer de, facto, good as to third parties. To constitute an officer de facto there must be an office, with a place for its exercise, with an incumbent under claim of right. None of these requisites here appear. There was no Garson County, Territory of Utah, at the date <?i this act, consequently no probate court nor judge thereof-for such county. Again, as appellant owned the bridge and whatever rights Fuller had therein at the date of the contract of 1862, he merged all other claims in that contract by his assent thereto and - his acts thereunder; and thus, if he had such' other perpetual right, it is too late to assert it now. The bridge has all along been treated simply as part and parcel of the toll-road; but if the point is insisted upon that this bridge is not such part and parcel, it does not help appellant’s claim to the right to take toll thereon. The bridge is over a navigable stream, and consequently could only be lawfully built or used for toll taking by the authorization of the legislature. Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. No such present authority exists, as has been seen; so the State, even in that view, would have a right to the present action. Turned in any light, the position of appellant is untenable, and the district court properly so held. Its judgment is affirmed.