21 Wend. 235 | N.Y. Sup. Ct. | 1839
By the Court,
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
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
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
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
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.