State v. Olcott

| Superior Court of New Hampshire | Nov 15, 1832

The opinion of the court was delivered by

Richardson, C. J.

In a case of this kind, where the prosecution is an information in the nature of a quo warranto, the respondent must either disclaim, or justify. For the object of the preceding is to ascertain by what warrant or authority the respondent holds the franchise. Angelí on Corporations, 494.

A plea in bar should set out the title of the respondents at length, and conclude with a traverse of the usurpation. The plea in this case is in bar, and, if not sufficiently answered in the replication, seems to be a good bar to the information. For, surely, every man has a right to demand a reasonable compensation for the use of his property.

The replication should not take issue on the traverse, but should be to the special mattter of the defence. 4 Cowen, 119; Gilbert’s Reports, 145, Rex v. Blagden.

The replication, in this case, is correct in this respect. It states, in answer to the matter of the plea, that in 1807 the legislature created a corporation, with power to make locks and canals, at the said White river falls, and authorized the grantees of the charter to fix the toll to be received for passing the locks and canals, for twelve years from the time of completing the canal; that the charter was accepted by the grantees, who acted under it ; made the locks and canals, and held them out for public use, and received a certain toll ; that the grantees, and these respondents, have ever since continued to receive toll ; and that the respondents, after the expiration of the twelve years mentioned in the charter, continued to demand and receive toll without lawful right.

Now the demurrer admits the truth of all this, if it be well pleaded ; and the question is whether this matter, as it is pleaded, is a good answer to the plea ?

If the charter was accepted by the grantees, the works erected under it and dedicated and held out to public use, and a toll taken according to the charter for twelve years, it is clear that no person can now have a right to demand any toll for passing the locks, unless such demand is authorized by the legislature. 4 N. H. Rep. 545.

The matter of the replication is then, in substance, a good answer to the matter of the plea.

It is objected to the replication that it is not averred that these respondents accepted the charter ; nor that Olcott, named in the charter, is the same person as the respondent of that name, nor that these respondents ever dedicated and held out the works to the public use. But it is wholly immaterial whether these respondents accepted the charter, or not. It is enough that it is averred that the grantees, named in the charter, accepted it, that the works were erected under it, and dedicated to the public use. If this be true, no person can now have a right to loll without authority from the legislature.

It is also immaterial, whether the respondent, Olcott, is the person named in the charter, or whether these respondents dedicated the works to the public use. It is a sufficient answer to the plea that the present owners have no right to toll, without authority from the legislature, because the former owners erected the works and dedicated them to the public use.

Nor do we see how it is, in any way, material in this case, whether Connecticut river be a navigable stream or not.

We are, therefore, on the whole, of opinion that the replication must be adjudged sufficient.