People ex rel. Taylor v. Thompson, 21 Wend. 235

People ex rel. Taylor v. Thompson

21 Wend. 235 | N.Y. Sup. Ct. | 1839

By the Court,

Nelson, Ch. J.

Thai the remedy here sought for the grievance complained of is the appropriate one, cannot be doubted in this court, after the cases already decided. 15 Johns. R. 358. 6 Cowen, 126, 211, 217. 5 Wendell, 211. 15 id. 113.

This is not a private franchise, coming within the reason of the rule which has influenced the English courts not to *250interfere with it by writ of quo warranta, on the relation of a private party, 2 Ld. Raym. 1409; Strange, 637, S. C. Cas. Temp. Hardw. 247 ; 15 Johns. R. 389 ; 4 Cowen, 104, note, and cases there cited; Willcock on Corp. 457,459 ; but one of a public nature, in which the community at large are essentially interested. Our statute is broader than the statute of Ann, both as to the officers and franchises, in, respect to which the remedy may be thus applied, 2 R. S. 582, § 28 ; 1 R. L. of 1813, p. 108, § 4; 9 Ann, ch. 20, § 4; and the writ has often been allowed in England in analogous cases, on the application of the crown officer or attorney general. Rex v. Nichols and others, 1 Strange, 299. Rex v. Badcock and others, 6 East, 359. Rex v. Clarke, 1 id. 43. And see Willcock on Corp. 454, 457. The cases in this court, above referred to, will also show that the remedy is equally as appropriate- where the franchise has become forfeited by nonuser or misuser, as in the case of an original usurpation.

The above view may be considered an answer also to the second ground taken againstjudgment of ouster; namely, that a private franchise cannot be forfeited by this process, where the people have required a bond with surety, conditioned, that the subject of the grant be made, and maintained according to its terms ; for I do not understand the learned counsel to put forth the position as tenable where the franchise is deemed a public one. Be this, however, as it may, I'am satisfied it is not maintainable in either case. The bond is but a cumulative security to the public, that the conditions of the statute will be faithfully observed-There is nothing in its enactments negativing this well defined and clearly understood common law remedy, and as has been well remarked by the attorney general, if the position of the counsel be sound in respect to the claim of forfeiture for misuser, it must be equally so as-to that arising from nonuser, the condition of personal security comprehending each. The consequence would be, that the exclusive privilege of erecting a bridge over the Harlaem river to Momsania, whether the bridge be. erected or not, might continue vested in Morris and his assigns for the sixty years, on their *251submitting to a forfeiture of the penalty of the bond. It would require a very clear and distinct provision in the statute to justify the conclusion that such was the intent of the legislature. It should be remarked also, that the course of pleading by the defendants has in effect conceded to the people the ground now sought to be occupied by the counsel in both the points above noticed.

Equally unavailing is the attempt to prevent judgment of ouster, on the ground of authority, to reduce the opening between the centre arches to a width less than twenty-five feet under the act of 1795. Though the width of the bridge was reduced by that act from thirty to not less than twenty-four feet, its dimensions in every other respect are left as prescribed in the original grant by the act of 1790. If the stone foundation had been built according to the former statute, the lockage through need have been only eight feet in width ; but then, very particular provision was made to facilitate the passage of boats without unnecessary delay, and suitable penalties were prescribed in case of neglect. Neither Coles or his assignees, however, have availed themselves of the privileges of the act of 1795. The foundation, dam and lock have never been constructed. The defendants, therefore, can set up no rights under it. For this reason they have been forced to fall back upon the act of 1790, as their defence against the charge of usurpation; and to maintain themselves, they must show, at least, a substantial compliance with its conditions. They cannot modify it by a statute, the provisions and privileges of which have long since been forfeited.

The only remaining position, and it may be said the only one in the case but what had been already virtually disposed of by the pleadings themselves, arises upon the form and effect of the verdict. It finds the bridge to have been originally built in conformity to the requisition of the statute ; but that since 1825, and until the commencement of this proceeding, there has not been an opening between the centre arches of the width of twenty-five feet, as alleged in the plea, and that during all this time the opening has been of less width than twenty-five feet. The grounds taken by the counsel for *252the defendants, in respect to .the verdict are, that for aught appearing to the contrary upon the face of the verdict, the variation from the statutory regulations may have been trifling; it may have been occasioned by obstructions wholly disconnected with the construction of the bridge, or by third persons ; and that the verdict does not show that the public have by means thereof sustained, or are likely to sustain, any inconvenience. There are, 1 think, without regarding separately the grounds thus assumed, two conclusive answers to them: 1. The defendants held the affirmative, and were bound to maintain their plea of title generally to the franchise, either by the concession of the attorney general, by proof, or in some other way ; they must, therefore, necessarily show the width between the arches to be according to the requisition of the statute, or set up a legal excuse for any departure therefrom. If compelled to admit a substantial departure, they should have put the justification upon the record, and brought it before the court; and in that way obtained their judgment directly upon' it. After having put themselves upon the ground of exact and literal conformity, upon which issue has been taken, a most material one, and which issue is found against them, with what propriety can they come in and say, true we have not performed the condition of our grant as found by the jury, but, perhaps, we had a legal excuse for the neglect or omission ? Thus, litigating the charge of exercising the franchise without warrant upon one ground, and after having failed, calling upon the court to justify them upon another and distinct one, and that, too, founded altogether upon presumption.

But 2. Assuming an excuse for the diminution of the opening to be available under the pleadings, it being involved in the issue, and the subject of litigation on the trial, the verdict for the people, under the charge and direction of the court, necessarily negatives the existence of any excuse. No objection is taken to the ruling of the judge in respect to the evidence offered, or to his instructions to the jury; we must assume, therefore, that the defendants have had the full benefit of any explanations or excuse in their *253power to offer, within the issue, and had it been such as would have made out a justification in judgment of law, that the verdict would have been in their favor. If the judge excluded competent evidence in relation to the excuse, or misdirected the jury upon the point, or if the verdict be against the weight of the evidence, the defendants should have sought a correction in the usual way, by a case or bill of exceptions.

This is not a special verdict in the technical sense of the term, but a direct finding of the issue for the people. A special verdict presents a statement of the facts proved, referring the conclusion of law to the court, and concluding conditionally for the plaintiff or defendant, as the court may be of opinion upon the whole matter.

Without pursuing the inquiry further, I am of opinion that the plaintiffs are entitled to judgment of ouster. 2 E. S. 583, § 48.