89 Ind. 238 | Ind. | 1883
The appellants’ complaint seeks the review of a judgment rendered on a demurrer to a complaint in an action instituted by them against the appellees.
The contention of appellants’ counsel is that a grant by county commissioners, to a private gravel road corporation, of the right to occupy and use a public highway for a gravel road, does not confer authority to dig into or disturb the surface of the ground occupied by the public road. We are of a different opinion. The grant by the county commissioners confers the easement owned by the county, and this embraces the right to improve and use the granted roadway for highway purposes. It would nullify the statute, to hold that the grantee of the county does' not take a right to make a gravel road out of the public highway. In granting a principal power, all incidental ones are impliedly conferred, and the grant of the commissioners necessarily implies the right to construct a gravel road and to do all reasonable things necessary to effectuate that object.
It is well settled that no additional burden is imposed by changing a public highway into a toll road. The change is not in the character of the servitude, but in the mode of sustaining the highway; in the one case it is sustained by taxes, in the other by tolls. Benedict v. Goit, 3 Barb. 459; Walker v. Caywood, 31 N. Y. 51; Wright v. Carter, 27 N. J. L. 76; Douglass v. Boonsborough, etc., Co., 22 Md. 219; Callison v. Hedrick, 15 Grat. 244; Nolensville, etc., Co. v. Baker, 4 Humph. 314; Panton, etc., Co. v. Bishop, 11 Vt. 198; Chagrin Falls, etc., Co. v. Cane, 2 Ohio St. 419.
Judgment affirmed.