5 Johns. Ch. 101 | New York Court of Chancery | 1821
This is a suit to enjoin the defends ants from disturbing the plaintiffs in the enjoyment of their toll-gate on the bridge over the Wallkill, at the village of Montgomery, and to shut up the private road and bridge designated on one of the maps in the cause, by the letters R. O. J. L. M. N. K.
The following are the most material facts in the case % The plaintiffs were incorporated by an act of the legislature, passed the 20th of March, 1801, (sess. 24. ch. 36.) for the purpose of making “ a good and sufficient road, to run in the nearest, most convenient, and direct route, as far as circumstances would admit, from the village of Newburgh, on Hudson's river, to Cochecton, on the Delaware river.” The corporation so created was authorized to “ enter into and upon any land where they should deem it proper to construct the said road, and to lay out and survey such tracts or routes as should be deemed most practicable, for making a good and sufficient road between the places aforesaid.” But they were not authorized 41 to make the said road through any garden, without the consent of the owner, if such garden shall have been cultivated as such, at least ten years before such road shall be laid out.” And as soon as the plaintiffs should have “ completed the bridge over the Wallkill, where the said road should pass the same, it should be lawful for the corporation to erect a gate and turnpike upon and across said bridge, and to ask, demand, and receive, of and from all and every person and persons who should pass over and use the said bridge, one half of the tolls and duties,” &c. Provided, those inhabitants who resided within five miles of the said bridge, on either side, should be allowed to compound with the president and directors, by the year, for passing and using said bridge.” And there was a further proviso, “ that nothing in the act should be construed to entitle the corporation to demand toll of or from any person passing to or from public worship, on Sunday,” &c. And it was further.provided, “ that if any person or persons should,
In pursuance of the provisions of this act, a turnpike road was duly laid out, inspected, and passed, and gates erected in 1804; and in passing through the village of Montgomery the road crossed the Wallkill, or, at least, on one side touched the Wallkill at, or very near the spot where the old bridge stood, and where the road had crossed it for nearly half a century before. The turnpike road so laid out and crossing the Wallkill, is designated on the map above referred to by the letters D. A. B. E. F. The road so laid out, appears to have been judiciously located, under the existing circumstances of the case, in 1804, and probably to the satisfaction and the best accommodation of the public at that time. There were difficulties and obstructions not easily to have been surmounted, in carrying the road directly on from the place on the map designated by R. or D., westerly, to the Wallkill; and the shortening the distance a few rods was of no consequence to the public.
A supplementary act was passed in favour of the plaintiffs, on the 28th of February, 1806, (sess. 29. ch. 29.) and before any new bridge had been erected by the plaintiffs over the Wallkill. By this act, the plaintiffs were authorized, when a good and sufficient bridge across the Neversink river should have been completed, to place upon and across such bridge a gate and turnpike, and to ask and demand one half of the toll and duties allowed to be demanded “ for passing a gate to be erected on the bridge to be built over tiie Wallkill.n The plaintiffs, in consideration of the toll to be taken on the Neversink bridge, were entitled to demand of any person “ passing the gate to be erected on the bridge •over the Wallkill river, when the same is built, only one half
It is to be observed, that this act was passed about two years after ti e road had been laid out nearly as it now leads over the Wallkill, and we áre to presume that location was well known to the legislature, it being a matter of public notoriety ; and this act was an implied recognition of that road, for the purpose of the bridge.
The bridge was made and finished, and a toll-gate established upon it, in 1809, and from that time to thecommencement of this suit, the plaintiffs have been in the exercise of the right to the bridge, and the toll-gate erected on it.
In 1810, the inhabitants of the village of M. were incorporated for local purposes ; and in 1812, the trustees of the village laid out, into streets and squares, the ground N. W. of the inhabited part of the village, and between it and the Wallkill.
On the 17th of March, 1815, (sess. 38. ch. 79.) another act was passed in relation to the plaintiffs, in which it was made “ lawful for the president, directors, and company to remove the toll-gate from off the bridge at the village of Montgomery, and to ask, demand, and receive, at, and from all persons passing the first gate west thereof, the same rate of toll, as for twelve and an half miles of the said road.” A similar provision was made in respect to the gate on the Neversink bridge.
The plaintiffs have not as yet availed themselves of this power to remove their toll-gate on the Wallkill bridge, and to increase their rate of toll at another gate, but in respect to that bridge, they have continued to exercise the rights and privileges conferred by the former statutes.
About the time of the passage of this last act, Benjamin Stars was the principal owner of the grounds so laid out by the trustees, to the N. West of the village, and he had it in contemplation to open a read and erect a free bridge over the Wallkill, at the place where the road and bridge,
Upon these facts, connected with a number of circumstances in proof, (but which do not materially affect the question of right or of remedy,) the subject for consideration and decision is, whether the plaintiffs are not unlawfully disturbed in the enjoyment of their toll-bridge, and whether it be not a case calling for the interposition of this Court ?
I shall lay out of view, as altogether inapplicable to the question of right, how far the new road and bridge have an influence upon the value of property within their vicinity, and how far the extension of the village in that direction may be accelerated or retarded by the continuance or removal of the new bridge. If the road of the plaintiffs was
The bridge of the plaintiffs is part of their road, and the gate upon that bridge is entitled to equal protection with ány gate upon their road. Considering the proximity of the new bridge, and the facility that every traveller has, by means of that bridge and the road connected with it, to
But it has been contended, that the plaintiffs were bound by the act of'1815, to remove their gate from the Wallkill bridge. The words of the act are, “ that it shall and may be lawful” for the president, directors, and company, to remove the toll-gate, 8zc. and to demand an increased rate of toll at the first gate west thereof. These words were applied to the trustees of a private company, and the better construction is, that it was intended as a matter of accommodation to the plaintiffs, to allow them to remove one gate, and increaste their rate of toll at another. The increase of the toll was intended as a compensation for the removal of the gate; hut the statute seems to have intended to leave it to their discretion, whéther or not they would avail themselves of"the permission. A peremptory and imperative interference of that kind, with a vested private right, is not to be inferred, when it is not expressly declared. Until the plaintiffs have accepted of the modification proposed, either by vpluntarily removing the gate from the bridge, or by demanding the increased toll at the next gate, all their former rights are to be deemed unimpaired, and as continuing in
The plaintiffs are, accordingly, entitled to a perpetual injunction against the use of the road and bridgej opened by the aid of the defendants. The trustees of the German church are entitled to the land which was granted by them
With respect to the damages claimed by the plaintiffs, for the loss of toll, and with respect to the question of costs, the act of 1815 is entitled to consideration, ás having an influence upon those questions. I can easily suppose that the defendants acted under a misapprehension of right, when they lent assistance to Fowler, in the erection of the bridge, and made a grant to him of the road west of the Wallkill; and I think that the act of 1815 raised a fair presumption, that the plaintiffs intended to avail themselves speedily of the permission thereby granted. If it had not been their intention, it is difficult to perceive a motive for passing the act, for I have no doubt it was passed upon their suggestion. The plaintiffs, since that time, have not paid very vigilant attention to their bridge, and this must have strengthened the presumption. Nor does it appear that the plaintiffs, made any objection to Fowler’s bridge, while it was building, or gave any notice of their intention to oppose the use of it. Under all these circumstances, I am not inclined to make the defendants responsible for the loss of toll occasioned by the use of Fowler’s bridge. They have disclaimed all concern in the act of opening the road, after it had been closed by the plaintiffs. The damages must be very uncertain, and every thing that was said on that subject by the witnesses was mere guess and conjecture. I do not think the plaintiffs have laid a strong foundation for the assistance of this Court, in respect to damages, or shown any reasonable data, by which they might be accurately and safely assessed. The defendants have, likewise, shown too much colour of excuse, for -the assistance they afforded to Fowler, and the plaintiffs., have been too inattentive spectators of the formation of the bridge and road, during the long time that the business
1 he following decree was entered : “ It is declared that the plaintiffs are in the lawful possession of the gate and turnpike, erected upon the bridge over the Wallkill, and in the pleadings mentioned, and are entitled to the exclusive enjoyment of the toll, for passing the said bridge, given to them by the acts in the pleadings referred to, of the 20th of March, 1801, and of the 28th of February, 1806; and that the permission given to the plaintiffs by the act of the 17th of March, 1815, also, in the pleadings mentioned, to remove the toll-gate from the said bridge, was not intended to be compulsory upon them to remove the said toll gate, nor to impair their previous right to ask, demand, and receive toll at the said bridge, until they should, by their own voluntary act and consent, have removed the said toll-gate. And it is further declared, that the erection of the bridge denominated, in the pleadings and proofs, Fowlet ’s bridge, and the opening of the road therefrom, west of the Wall-kill, and leading to the turnpike road of the plaintiffs, enables persons travelling upon the road of the plaintiffs tó avoid the toll- gate, and to re-enter upon the road within a shorter distance than a mile from the place at which they had quitted it, and consequently the said bridge, denominated Fowler’s bridge, and the road leading therefrom as aforesaid, are an unjustifiable and unlawful interruption and disturbance of the plaintiffs, in the enjoyment of their statute right and privilege, to demand and receive toll as aforesaid. And it is further declared, that the defendants, by having afforded aid towards building Fowler’s bridge, and such of them as were trustees of the Reformed German church, by having granted land for the sole purpose of the said road, have been and are still contributing to the said injury to the plaintiffs. It is thereupon ordered, &c., that the defendants, and all persons by, from, or under them be enjoined, so long as the plaintiffs shall continue the toll