| N.Y. Sup. Ct. | Oct 15, 1820
It was undoubtedly intended by the legis-]ature t0 vest jn the president and directors of the company some discretion, in fixing the easterly gate ; but it was tobe near the Massachusetts line. This is a relative term, and regard must be had, in construing the act, to the length of the road, which is about twenty miles. In the case of the People v. Denslow, (1 Caines, 180.) this court decided, that a gate placed at the distance of eight chains and fifteen links from the house oí John Van Hoesen, was a legal exercise of the power granted by this act requiring such gate to be near his house. But there must be some limit to the discretion given, and we are clearly of opinion, that considering the extent of the road, a gate two miles and three quarters from the Massachusetts line, is not placed near that line. We are, also, inclined to the opinion that where the discretion has been once exercised, the power is exhausted; that it cannot be revested, so as to authorize the company to change and move the gate, to suit their convenience, without some strong and manifest necessity to warrant it. Here the company have acted capriciously, and have lost sight of.the trust reposed in them, by changing, several times, the location of the easterly gate, contrary to their first opinion, and without any apparent necessity for it. The judgment must be affirmed.
Judgment affirmed.