Cleaveland v. Ware

98 Mass. 409 | Mass. | 1868

Hoar, J.

The charter of the Salem Turnpike and Chelsea Bridge Corporation, by whose treasurer, and to whose use, this suit is brought, is the statute of March 6, 1802. It gave the corporation the right to purchase or take lands for laying out and maintaining its road; gave to it the franchise of erecting a toll-gate and receiving a fixed rate of toll; and imposed upon every person who should forcibly pass, or attempt to pass by force, the toll-gate, without first having paid the legal toll at such gate, a forfeiture of not exceeding fifty dollars and not less than ten dollars, to be recovered by the treasurer of the corporation to its use. In § 10, in which this forfeiture is declared, there is a proviso, as follows: “ Provided, that nothing in this act shall extend to entitle the said corporation to demand or receive toll of any person who shall be passing with his horse or carriage to or from public worship, or with his horse, team or cattle, to or from his common labor, or to or from any mill, or on the common or ordinary business of family concerns, within the said town, or from any person or persons passing on military duty.”

1. The first question which the bill of exceptions presents is, whether the defendant had the right to pass the toll-gate free of toll, because he was the owner of the land on which it stood, and over which the turnpike adjacent to it on each side was laid; and it is very clear that he had not. It is said that the turnpike corporation took merely an easement in the land, and that the rights of the land-owner remain the same as before, subject only to the easement. But the corporation had not only the easement, or right to lay out, maintain, use, and allow the public to use, the road for travel, but had also the franchise to take toll of every person, not specially exempted by the act, who should use the road and pass its gate. The claim of the defendant is wholly inconsistent with this franchise. If he could pass himself, as owner of the land, he could convey his right to other persons at his pleasure; and thus all travellers, by license of the owner of the land, or by bargain with hirn, might pass the gate toll-free. The claim is wholly unfounded.

2. The second point taken is upon the offer of the defendant to show that for more than twenty years he and his predecessors in the ownership of the same land had always passed the gate without paying toll, and refusing to pay toll, under a claim of right; and that he had thus acquired a prescriptive right to pass toll-free. Upon this point the ruling seems to us to have been correct; and that the mere omission for twenty years to enforce or attempt to enforce payment of toll against him and his predecessors in occupation of the farm did not exempt him from the obligation to pay, or establish the prescriptive right which he claimed, although his passing and refusal were under a claim of right. Such a right could only have been acquired under a contract with the corporation. The right to travel over the turnpike was a common right in all persons, and it is only the exemption from tolls which could be the subject of the prescription. The offer of evidence did not go so far as to show that the right to pass toll-free was claimed as a right appurtenant to the land ; without which element there would be no privity between successive owners. Nor did it show that there had been any grant of the right from one owner in succession to another. It did not appear how frequent or continuous the assertion or exercise of the right had been; or that the toll-gatherer knew, at any time when he omitted to collect the toll, that the person passing was not within the statute exemption. There was no offer to prove anything from which it could be inferred that the corporation knew or assented to the defendant’s claim, or expressly or by reasonable implication admitted the existence of a grant or contract on its part.

3. "We can have no doubt that the obligation rests upon any person attempting to pass a turnpike gate, and claiming exemption from toll, to state at the time, if asked to do so, the grounds upon which the exemption is claimed. The collection of tolls would otherwise be extremely difficult, if not substantially impracticable. Especially is this true where the exemption depends upon a fact peculiarly within the knowledge of the traveller, and perhaps upon his mere intention. The liability to toll is general upon all who use the turnpike roads. The exemption is a privilege contained in a separate.proviso. To pass free, the defendant must bring himself within the proviso, by coming within its terms, and then by asserting the privilege under it. The question is not, as in Central Bridge v. Butler, 2 Gray, 130, upon whom is the burden of proof at the trial. In that case the plaintiff corporation, after permitting the defendant and his servants to pass without demanding toll, brought an action of assumpsit for the tolls; and it was held that the burden of proof was on the plaintiff to show that tolls were due. If in the case at bar the same burden is upon the ulaintiff, it is sustained by showing that the defendant forcibly passed the toll-gate without any claim of exemption on any legal grounds.

Exceptions overruled.