Olcott v. Banfill

| Superior Court of New Hampshire | May 15, 1829

Richardson, C. J.

delivered the opinion of the court.

The question is, whether upon the facts stated in this case the defendants are legally entitled to a new trial ? The cause has been ably argued on both sides, and no doubt seems to us to be now left as to the rule which must govern our decision.

When individuals, under a charter from the government, construct works for the public accommodation and open the works to the use of the public, this is in law a dedication of the works to the public use, and no toll can be demanded, unless it be authorized by the charter. The reason of this is, that a toll, in such a case, is a common charge which it is the prerogative of the government alone to impose and regulate. This principle seems to be well settled. Thus turnpikes have been held to be public highways, and the erection of a gate upon them without the authority of the legislature has been adjudged a public nuisance. And money exacted as toll at such a gate has been held to be illegally taken, and the person who received it compelled by action to refund it. 2 Mass. Rep. 102, Commonwealth v. Heare; 1 Pick 122, Robbins v. Borman, et a.; 7 Johns. 179" court="N.Y. Sup. Ct." date_filed="1810-11-15" href="https://app.midpage.ai/document/hearsey-v-pruyn-5472703?utm_source=webapp" opinion_id="5472703">7 Johns. 179, Hersey v. Pruyn; 18 ditto, 397, Griffin v. House.

So it has been held, that if individuals build a bridge by virtue of an act of the legislature, they cannot legally demand toll without authority from the legislature. 1 Pick. 306-307. It is also well settled, that a ferry is pub-lid juris. It is a franchise which no one can erect without authority from the government. If a ferry be erected without authority, or if the franchise be abused, an information in the nature of a quo warranto lies. Willes’ 512, note; 6 B. & C. 703, Peter v. Kendall; 12 East, 334, note; Strange, 1161. Case lies, if the owner of a ferry take toll where none can be lawfully exacted. And if the owner of a ferry neglect to keep a boat, he may be punished by indictment. 1 Shower, 231, Payne v. Partridge; Com. Dig. “ Pischary” B; Hardres, 163.

But in this cause, it dees not appear from the case stated, that the charter was even accepted by any person, or that the corporation was ever in any way organized. It does not not appear, that the plaintiff ever acted under the charter, or claimed to act under it. He sits up no title to the money he demands of the defendants under the charter. It is, therefore, clear that the locks and canals of the plaintiff do not appear to have been dedicated to the public use by being erected under a charter from the legislature. It is not improbable that the works were erected under the charter, but the fact does not appear. The circumstance, that the charter was procured, might furnish a proper ground on which a jury might presume that the works were erected under it. But we are not at liberty thus to presume and make the presumption a ground of our decision. The charter, then, can have no influence in the determination of the cause at this time, and may be laid out of the case.

We have no doubt, however, that locks and canals, highways, bridges, and ferries may be dedicated to the public without a charter from the government, in such a manner as to render it illegal to take toll. For this purpose, nothing more seems necessary than to make them, hold them out as for the use of the public in general, and permit all who come to have the use of them. After this a toll levied of those who use them becomes in its nature a common charge upon the public, which cannot be legally imposed without the sanction of the legislature. 4 Mod. 320; 2 Rolle’s Ab. 171.

In the case of Juxton v. Thornhill, Cro. Car. 132, which was assumpsit for toll for the use of certain locks, the plaintiff had the king’s license to erect the locks, and to take a reasonable toll.

There are certain cases, in which, if individuals dedicate their personal services, or the temporary use of their property to the public, the law will impose certain duties upon them and regulate their proceedings to a certain extent. Thus a common carrier is bound by law, if he have conveniences for the purpose to carry for a reasonable compensation. The law is supposed to be the same with respect to the; owners of stage-coaches. All persons are restrained from exercising the business of innkeepers without, license, and certain duties are imposed upon those who exercise the business, by a statute. And the toll to be taken at gristmills is regulated by statute. In these cases the law interferes, because such employments concern the public.

But it does not appear, in this case, that the plaintiff had ever held out his works as for the public use, or permitted all who came to use them. There is nothing stated in the case to show a dedication of the works to the use of the public. The only .circumstance, if we except the nature of the works, which renders it even probable, that there was a dedication is, that it is stated that these defendants are charged in this case at the same rate as others. But for ought that appears, the plaintiff may have made the locks and canals for his own private accommodation, and only have permitted others occasionally to use them for a reasonable compensation, as he lawfully might do. He might let others use them: by a particular agreement although he could not exact a toll. 4 Mod. 320.

And, upon the whole, we see nothing in the case stated which shows this claim of the plaintiff to be illegal.

But the defendants object, that they were improperly precluded from-showing the claim of the plaintiff to be unreasonable, and demand a new trial on this ground.; It seems to us that this objection is well founded. We have no doubt that the defendants must be bound by the note unless they can show fraud, or mistake, or illegality in the contract. But the account stands upon different grounds. No special contract as to the price of the services there mentioned appears to have been made between the parties, and nothing can be clearer, than that the plaintiff, in such a case, could be entitled to recover no more than a reasonable compensation. It is equally clear, that the defendants ought to have been permitted to show what was a reasonable compensation ; and on this ground, we are of opinion, that the verdict must be set aside, and

A new trial granted.