| Mich. | May 3, 1864
The only question in this case, is, whether the plank road company had the right to erect and maintain a toll gate on the Fort Gratiot road, or Gratiot street, in the tenth ward of the city of Detroit.
By the charter of the company — Laws of 1848, p. 382 — they were authorized to establish and construct their road '■'•from the city of Detroit in the county of Wayne, on the Gratiot road, so called,” to, &c. Their right to the use of the Gratiot, road for this purpose was affirmed in the case of McKay v. The Detroit & Erin Plank Road Co., 2 Mich. 138.
Under the General Plank Road Law of 1848 — Laws of 1848, p. 65, § 17 — which was made a part of their act of incorporation, the company had power to erect and maintain toll gates; and it is provided that “ such toll gates so to be erected by such company may be as many in number, and located at such points, as such company may deem necessary.” The general power to change the location of a gate once erected, or to erect new ones,
The road was constructed in 1849, and a toll gate •erected within what is now. the tenth ward of the city; and, it would seem, near the place of the present gate; how near does not appear. This ward was not then, nór •until 1857, within the city limits; but the corporate limits were then extended by the Legislature, and this ward •added to the city. The location of the gate seems to-have been changed in 1862, but which way or how far 'does not appear; nor is it material, as the places of both the former and present gates were outside of the city limits until 1857.
There can be no doubt that, under their original charter, the company had the right to erect and maintain their gate in the place where it was first located, and which was then without the corporate limits of the city. Nor do we- see any more reason to doubt that, under that act, unless altered in this respect by the amendatory act of 1851, they would still have the right to continue the gate, or erect and maintain a new one, at any point on their road, not within the city limits as established at the date of the charter and when the road was constructed, notwithstanding the subsequent extension of the city limits so as' to include the place in question. But their rights terminated at the city line, as then established. They could neither extend their road, nor construct a gate within the city. But in 1851 the company, it would seem, Were desirous of obtaining the right to extend their road into the city; and, by an act amendatory of their charter— Laws of 1851, p. 36, § 2 — the Legislature granted them this power in the following words: “ Said Detroit and Erin Plank Road Company may, and they are hereby empowered to extend their road on Gratiot street to Randolph street in the city of Detroit; Provided, that no
We have not been able to discover in this amendatory act any indication of an intent to restrict or impair any of the powers granted to the company by their original act of incorporation. Its object clearly was to grant to the company powers additional to those it already possessed; and the purpose of 'the proviso was to restrict of qualify that additional grant of power, and that only. The proviso is no more extensive in its operation^ than the power which it qualifies; and both are confined in their operation to that part of the road authorized to be constructed between the city limits, as then established, and Randolph street. The Legislature have merely said to the company, “ you may extend your road into the city as far as Randolph street; but, in doing so, you shall not erect or maintain a toll gate upon the portion thus extended.” To extend this proviso to the original act, would be to disregard the plain purpose for which the amendatory act was passed, and to change the proviso into a positive and independent enactment.
Had this proviso been inserted in the original charter of the company, as a limitation of their powers, the case might have fallen within one of the principles recognized in Regina v. Cottle, 3 Eng. L. & Eq. 474. But even then, to bring this within the controlling principle of that case, it should further have been made to appear, not merely that the gate was within the territorial limits of the city corporation, but that the town had been actually built up along that portion of the road; in other words, that the gate was upon the street of a town or city de facto, where the public inconvenience would be very great, rather than upon a road in the country, where it would be very little. Here it does not appear that there was a house or other building within a mile of the gate.