Majority
p. 395The President, Directors and Company of the Farmers’ Turnpike Road against Coventry. NEWYORK, Oct. 1813.
Headnote
^g^compa,an-ijc$ ture, were ^k^roads* of Hudson,”\t the words were to have a reasonable construction in reference iff the subject matter, and the public object of the grant, which was to open a good road to the compact part of the city of Bud» son/ and that such road did not terminate on arriving at the north bounds or charter limits of the city of Hudson, several miles from the compact parts of the city. The word to may sometimes be taken inclusively according to the subject matter.Toll-gates on a turnpike road authorized by the act of incorporation, may be erected so as to intersect and stop an old highway, provided they are in the places designated by the act, which is tor be considered as so far controlling the use of the old road»
Where a turnpike company pledged their income and tolls of the road to a person, to reimburse money advanced by him; it was held that the possession of the gates, &c. was still, in judgment of law, in the company, who might maintain trespass for pulling down the gates.
Though a penalty is given by a turnpike act for injuring or destroying toll-gates, yet the cornea.* jay may bring an action of trespass at common law, for such injury/ to their property» '
THIS was an action of trespass, for cutting down and carrying away a turnpike gate, standing within the corporation of Hudson, and across the turnpike road of the plaintiffs. It was tried at the Columbia circuit, in October, 1812, before Mr. Justice Van Ness.
The plaintiffs gave in evidence the act of their incorporation, passed 24th March, 1806, (sess. 29. c. 50.) and the license of the governor, under the act, to erect the toll-gate, dated 9th Septem- Jtov 1 Pi 1 mr, loll.
_ _ By the act of incorporation the plaintiffs were authorized to make 1 t t- -c , ' a “ road from Troy to the city of Hudson, along the east bank of
p. 396
the river, as near as the nature of the ground will admit of.” And h provides that neither of the toll-gales should be nearer than 3 miles from either extremity of the road, except that in addition to qle saj¿ ga(eS; the company were allowed to erect a toll-gate at or near qle bridge f0 be erected by the company across Major Abraham’s creek or kill, 8rc.
It was proved that the gate stood above three miles from the , junction of the road with Main-street, in the city of Hudson ; and that the defendant, with 30 or 40 persons assembled for the purpose, forcibly took down and removed the gate. The witness for the plaintiff, on his cross-examination,. stated that the gate stood obliquely across the road, and shut up the old road running from Peter Van Rensselaer’s house.
The defendant read in evidence the act incorporating the city of Hudson, passed the 3d April, 1801, (sess. 24. c. 128.) showing the limits of the city.
It was admitted that the turnpike road passed through the compact part of the city of Hudson, and that the gate in question stood within, three miles of the place where the road crosses the line of the compact part of the city.
The defendant also gave in evidence the act passed the 6th April, 1807, (sess. 30. c. 128.) relative to the city of Hudson, requiring all houses, &c. erected within the compact part of the said city, as lately surveyed by Jonas Smith, to be built in a particular manner, and produced the map of Jonas Smith to show, what had been defined by the act as the compact part of the city.
A witness testified that the place where the Farmers’ turnpike strikes the Columbia turnpike, is 18 rods from the head of Main-street, and that the gate stood more than three miles from the head of Main-street, deducting the 18 rods: and crosses the compact part of the city 2 miles and 127 rods from the gate.
It was proved that the road was within the compact parts of the city; and it was admitted that the old Rensselaer road was a public highway long before the city of Hudson was incorporated, and so continued until the gate was erected by the plaintiffs.
An order of the common council of the city of Hudson, dated 1st January, 1812, for taking down the gate in question, was given in evidence.
It was proved that toll had been exacted at the gate from persons travelling on the old Rensselaer road,
p. 397The only question that can arise in this case is as to the amount of damages. We shall contest the right of the plaintiffs to erect the gate. If they have the right, we shall not object to the amount of damages found by the jury. We contend, 1. That the plaintiffs had no right to put the gate at the place where it stood, and that it was, therefore, a public nuisance, which the common council of the city of Hudson might order to be removed, and which the defendant himself might lawfully abate. By the act incorporating the company, the road is allowed to go from Troy to the city of Hudson; and no gate can be erected within three miles of either extremity of the road; now it appears from the limits of the city of Hudson, as defined by the act of its incorporation, that this gate was erected within three miles from its charter limits; and within three miles of the compact parts of the city, as defined by the map, confirmed by the act of 1807. To the city of Hudson must mean either to its boundary line, as defined by the charter, or to the compact parts of the city. 2. The right of the plaintiffs, if they have any, as well as their remedy, is given by the statute. Their right did not exist at common law.[2] The only remedy, then, to which the plaintiffs are entitled, is the one given by the statute, which, by the 10th section, is a penalty of 25 dollars, to be recovered in the name Q[ their treasurer. 3. The gate in question intercepted and shut up a road within the corporation limits of the city of Hudson, the free use of which was reserved to the people of the state, by the charter of incorporation, and of which they cannot be deprived, except by an express act of the legislature. 4. The possession of the premises was in fact and of right in Ackley and Miller, to whom they had been pledged by the plaintiffs, and they, not the plaintiffs, were entitled to bring the action.
• Á. contract between the plaintiffs, William Ackley and Benjarmin Miller, dated 1 Oth August, 1811, was produced in evidence, by which certain advances made by Ackley and Miller for the company were acknowledged, and the income and toll were pledged to them for the repayment of those advances.
The jury found a verdict for the plaintiffs, for 70 dollars, subject to the opinion of the court on a case to be made.
E. Williams, for the plaintiffs.
Van Buren, contra.
p. 398insisted that by no just or fair construef10n 0f the act erecting the turnpike, could it be limited to the exterior bounds of the corporation of Hudson; it must be undergf00(] to authorize the plaintiffs to carry the road into the centre of the city. It does not follow that because the road ig to go to the city of Hudson, that it may not go into the city. But if it were otherwise, no individual, after the road had been sanctioned, had a right to pull down the gates. No doubt the right and remedy in this case are both created by the statute; but as soon as the corporation was created, it had the same common law right as any individual, to seek a remedy for any invasion of its rights or injury to its property, by an action at common law. The penalty is only another remedy, and does not prevent the plaintiffs, where the penalty does not afford an adequate indemnify, from resorting to an action of trespass at common law. In the case of The People v. Pension,[2] it was decided that a turnpike gate might be so placed as to intercept an old highway, provided it was placed within the limits authorized by the act. And if the gate could not be so placed, it is manifest that the payment of toll might, in many instances, be evaded. Though the income or toll was pledged to Ackley and Miller, yet the road and the gate must be deemed as still in the possession of the plaintiffs;
E. Williams, in reply,
The plaintiffs, by their charter, were entitled to carry the road “ to the city of HudsonThis did not mean that the road was to terminate on arriving at the north bounds of the city, which are the middle of Major Abraham's creek, and several miles from the compact part of the city. The words are to receive a more reasonable interpretation, in reference to the subject matter, and the public object of the grant; which was to open a good road from Troy to the compact part of the city of Hudson. The words usque ad are sometimes to be taken inclusively, according to the subject matter. (1 Stra. 179—181.) Such must have been the universal understanding of the object, and of the words of the grant; and if there could otherwise have been any doubt on this point, it seems to be removed by the 10th section of the act. That section provides that no gate should be erected nearer than three miles from either extremity of the road, and yet allows a tollgate at or near the bridge to be erected over Major Abraham’s creek.
p. 399
it was proved by one who had surveyed the road, that the gate in question stood more than three miles from the head of i1Iain-stre~t, leading down through the compact parts of the city of Hudson~ The gate was therefore lawfully erected~ and the pulling it dawn was a trespass. The old Rensselaer road had nothing to do with the question. The plaintiffs had a right to lay out a road from Kinderhook landing to Hudson, as near the east bank of the river Hudson as the nature of the ground would admit, and it was for the commissioners appointed by the governor to determine whether the road was executed according to the act. And when the road was made and completed according to law, the gates were to be erected; and so far as the gates, or any of them, interfered with travelling on the old Rensselaer road, so far the use of the latter was contracted by the grant to the plaintiffs. This was the opinion of the court in the case of The People v. Denslow, ( 1 Caines’ Rep. 177 .)
The fact of the trespass was admitted; and the possession of the gate was, in judgment of law, in the plaintiffs, the rightful owners of it, notwithstanding the toll had been mortgaged. The mortgage was of the income, and not of the road. They were entitled to their action of trespass at common law, and the penalty given by ihe statute was only an additional remedy. An action of trespass always lies at common law for an invasion of private property. It was a matter actionable at common law. (2 Inst. 199, 200.)
The plaintiffs are, accordingly, entitled to judgment.
Judgment for the plaintiffs.