Douglass v. President of the Boonsborough Turnpike Road Co.

Q-oldsboeough, J., delivered the opinion of this Court. The appellees by the Act of 1814, cli. 71, were incorporated with power to make a turnpike road from Boons-borough to a point on the Potomac river. By the 10th section it provides that “hhe said road be made on, over, and upon the bed of the present road, as laid out and used.” The company was authorized to charge tolls on the road upon the completion of it. No effort appears to have been made to carry into effect the object of the char [236] ter until after tbe year 1852. Tbe charter was, however, preserved by successive legislation. By the Act of 1852, ch. 266, the appellees were ‘ ‘authorized to occupy, grade, and if necessary, change the public road leading from Sharpsburg to the Potomac river, and to exercise over said road, all the rights and powers, conferred on said corporation hy the Act of 1814, ch. 71, and to charge tolls” as prescribed by this Act. It is conceded that the turnpike road ran through and over the lands of the appellant. The appellee proceeded to occupy and grade the road and tendered no compensation therefor to the appellant. He thereafter instituted suit against the appellee in 1857, in the Circuit Court for Washington County to recover damages for the immediate trespass in occupying and grading the road without his consent; and in the fourth count of his declaration, claimed consequential damages for injuries resulting to his property from the grading of the road, and from other causes set out in this last count. In the first three counts of the plaintiff’s declaration and in the subsequent pleadings, applicable thereto, as set out in the record, as also in the first three prayers of the plaintiff and the prayers of the defendant, is involved the important and ruling question, whether the Act of 1852 is constitutional, and whether under that Act the appellee ' could take legal possession of the highway mentioned in the Act, and occupy and grade the same for the purposes of a turnpike road, without being subject to a new condemnation and compensation to the appellant for that portion of the road which passed over and upon his land. The appellant expressly raises the point “that the Act of Assembly under which the appellee attempts to justify, is unconstitutional, and no justification could be legally pleaded under its provisions.” It may be properly said in reference to this main question and the objection of the appellant, that the highway on [237] which the turn|)ikc road is established, having been once condemned and compensation made to the then owners of the soil, that the appellant purchased cum onere; and in our opinion the Legislature had full power to authorize the appellee to occupy and grade the highway for the purposes of a turnpike road, in which occupation the community alone was interested; and if any compensation could rightfully “be claimed and allowed, it was not by, or to the then owner of the soil, but to the community which had borne the burden of the original condemnation. As to the right of the appellee to grade the road, we find sufficient justification in the original Acts of Assembly, by virtue of which, public highways were established. If under these Acts the county authorities were allowed to use all necessary materials, such as stone and gravel and earth, to make the highways subserve the purpose of promoting the public’convenience, we think the appellee was not guilty as alleged, if it exercised a similar power under its charter, It would be contrary to the spirit and intention of the original laws creating public highways not to give them a liberal construction; and though a grant to a private corporation is to be construed strictly, yet it is not to be so construed as to defeat the object of the grant. In the case of Wright vs. Carter, 3 Dutcher’s N. J. R., 76, the Court says, “by the transfer of the road from the public to a corporation, the title to the soil is not changed, but remains in the owners of the soil of the adjoining lands, and they have the same use and enjoyment of it as they had before: the easement or right of way is transferred to the company to be held by them while they work the road and keep it in repair, subject to the right of the public to use the road upon paying the tolls established by law.” The constitutionality of the Act of 1852 is directly supported by the above case, as that question was involved under similar circumstances. The doctrine laid down in Wright vs. Carter, [238] is analogous in every respect to the case before us, and we do not hesitate to recognize its controlling influence. The cases principally relied on by the appellant, and where judgment on the demurrers was rendered for the plaintiff upon a plea of justification, are cases in which rail roads, and canals have been established, and a clear distinction is drawn between them and plank or turnpike roads. In the case of Craig vs. the Rochester City & Brighton R. R. Co., 39 Barbour’s Rep., 505, the Court refer to several cases establishing the above distinction; that the occupation of a highway hy a rail road or canal is permanent and exclusive. Whereas in cases of turnpikes, they are regarded as public highways, as every citizen has a right to travel on them in his own mode of conveyance, and the imposition of tolls is aknethod of keeping them in repair: we are not, however, called on to decide the question raised hy the authorities relied on by the appellant, hut simply the one before us. Having decided that the Act of 1852 was constitutional, we are of opinion that the appellee’s fourth plea was well pleaded, and the Circuit Court ruled correctly in giving judgment on the plaintiff’s demurrers for the defendant, we are further of opinion that the Circuit Court was right in granting the defendant’s prayers, and rejecting the first three prayers of the plaintiff. We have thus far confined ourselves to the consideration of the appellant’s claim for damages under the first three counts of his declaration and the pleadings and prayers applicable thereto. The claim for consequential damages set out in the fourth count, depended upon facts to be found by the jury: and the appellant’s fourth prayer, which was granted by the Court, properly announced the law upon the rights of the appellant in this particular. Finding that there is no error in the ruling of the Circuit Coirrt [239] either upon the pleadings or prayers, the judgment will be affirmed. (Decided October 31st 1864.) Judgment affirmed.