Benedict v. Goit , 3 Barb. 459 ( 1848 )

By the Court,

Gridley, J.

The questions raised upon the demurrer in this cause involve the constitutionality of one of■ the provisions of the act organizing the “ Rome and Oswego Road Company,” and authorizing the construction of the road known as the plank road, leading from Rome to Oswego. By the second section of the act, (Laws of 1844, p. 434,) the provisions of the general statute concerning turnpike corporations, (1 R. S. 581,) are adopted, and made applicable to the road in question. The 29th section of the general act confers the power of taking any public highway, by appraising the value of the public interest in the road, and paying the same to the commissioners of highways, to be by them applied to the improvement of the roads in their respective towns. It is this particular provision to which the plaintiff objects. He lives upon the line of the road which has been constructed upon the site of a public-highway that has been appropriated under this section; and he complains that the defendant has committed an unwarrantable trespass upon his land by the act of building the road: and also th.at in grading it an embankment has been raised in the front of his dwelling house, so that he has been compelled to incur considerable expense and inconvenience in raising his buildings to the level of the road. The defendant has in his plea justified the alleged trespass, under the act, as a servant of the company; and to this plea the plaintiff has demurred.

The ground assumed by the plaintiff is that the “ locus in quo,” since its appropriation by the company, has ceased to be a public highway, and therefore that the entire interest in it has reverted to him as the original owner; and doubtless the conclusion follows as a legal consequence if the premises are admitted to be correct. Several cases have been decided in this state, holding that rail-road companies, which have occupied portions of the public highway, are liable to the owners of the soil for an unlawful invasion of their rights. (3 Hill, 567. 25 Wend. 462. 5 Hill, 170.) But a rail-road is in no sense a public highway. The nature of the road forbids its use by the public in common with the company. But the position assumed by the defendant’s counsel is that the road in question in this suit is a public highway still, open for the public use, precisely as is every public road in the state; and that the corporation organized by the act before cited has succeeded to all the rights and powers of the commissioners of highways, in the several towns through which the road passes. We are of this ppinion.

I. That the road is public in the sense thqt every citizen has the right to travel on it, either on foot, on horseback, in his carriage, or with his team, subject to the payment of the legal tolls, is undeniable. The object of the legislature in passing the act seems to have been two-fold : 1st. To provide for abetter road than is ordinarily constructed under the supervision of the town commissioners. In order to carry out this design, the sixth section of the act declares that the “ track of said road shall be constructed of timber, plank, gravel, or other hard material, so that the same shall form a hard, smooth and even surface.” It cannot be doubted thaf the legislature has the power to ordain by law that all the public highways in the state shall be graded, leveled, and constructed of some hard substance, under the direction of the town commissioners, so as to form a hard, smooth and even surface. And it is equally clear that the commissioners in the respective towns, by virtue of the powers they now possess, may in their discretion improve the public highways in all these respects, to the exteat of the means under their control, No importance should be attached to the idea of a plank road: .for the intent of the act was simply to provide for a road constructed of some hard and durable material. A gravel road would equally have satisfied the requirements of the act.

A further object of the legislature yras to provide for a different mode of keeping the road in repair. It devolves the duty upon the corporation instead of the town commissioners, and provides for raising the necessary funds by levying tolls on those who travel on the road, instead of resorting to an assessment upon the inhabitants of the respective districts. We do not see w[iy these provisions are not entirely within the power of the legislature. May they not vest the oversight of the public roads in any other agent than the commissioners? And may they not provide any other mode which seems to them more equitable and expedient foi keeping the roads in repair, than the ordinary highway assessment ?- And if these provisions should be extended to all the public highways' in the state, would they cease to be public highways ? And would the public interest in the roads become forfeited by such an act, and the owners of the fee of the lands over which the roads are corisiructed, .succeed to their original estate.in those lands, discharged of the right of the public to use them as public highways 1 We think not. Arid if this consequence would not follow from a general exercise of this power by the legislature, we do not see why it should in the particular instance in question: To deny the power of the legislature to exercise this extensive control over the public highways in the state, vrould be to interpose an effectual barrier to any important improvement in our public roads and thoroughfares, arid would operate most injuriously upon the advancement arid prosperity of the commercial, manufacturing, agricultural and social interests of the community. We are of the opiniori therefore, that, upon principle, the road which was taken by this company by virtue of the provisions of the act, did not cease to be a public highway; and that when the corporation paid the commissioners of highways for the public interest in the road, it succeeded to all the rights of the town commissioners to make such repairs in the road as the public interest required, whether such repairs consisted in excavátions or embankments, to bring the road to a proper gráde, arid thus to improve its condition as a public thoroughfare.

II. This question seems to have been settled, so far as such a question can be settled by legislative authority. It is not pretended by the counsel for the plaintiff that any difference exists between the rights acquired by this corporation, and those to which a turnpike company would be' entitled under the like circumstances. The provision in question' has been incorporated in the acts relating to turnpike companies for more than! forty years. The original turnpike act was passed in 1807’,' and was re-enacted in the revision of 1813, and again in 1830and the principle was again distinctly asserted in the 26th section of the act concerning plank ánd trirripike roads, passed in 1847¿ (Laws of 1847, ch. 210, p. 216, § 26.) During all this period— within which the state has been traversed in every direction by turnpike roads, in the construction of which the right which is now drawn in question must have been most extensively exercised — we have no knowledge that any individual has complained of the exercise of this right, or controvéited the constitutionality of the act which conferred it. This long practice under the law, in addition to its repeated re-enactment, though not conclusive, nevertheless is strong evidence in favor of the correctness of our views upon the question under consideration. This however is not all. The point has been directly adjudicated in the case of The Commonwealth v. Wilkinson, (16 Pick. 175.) In this case a turnpike road was adjudged to be a public highway.

It is not to be denied that the corporation have an interest, of a certain description, in the road. They may doubtless recover damages against any person who shall commit an injury upon it. This is, however, precisely the same interest which a public agent would possess in it, who should be employed under a legislative enactment to keep the road in repair, for a given compensation. Again, every citizen over whose lands a public road is laid óut, retains an interest in the road. He still owns the fee of the land, and may maintain ejectment or trespass against third persons who take possession of it, or use it for any other purpose than a public highway. The public interest in the road is merely that of a right of way; and we cannot see how the interest which any individual or corporation may have in the road, that does not interfere with this right, can in any degree affect its character as a public highway. The interest which this corporation has in the road in question is entirely compatible with the use of it as a public highway, subject only to the single condition of paying tolls; and this, as we have already seen, is a burden imposed expressly for the keeping of the road in repair. And in many instances it is far more equitable than the common mode, by assessment of a highway tax. By the latter mode, a citizen, whose employment consists in drawing heavy loads over a given tract of highway, hi no degree indemnifies the public for the repairs which he renders necessary, by the insignificant assessment which he pays in his own district. In all such cases, the system of tolls is a far more equal and just one.

III. The claim made under the 4th count of the declaration must depend upon the decision of the question we have just considered. If the corporation has succeeded to the rights and powers of the Commissioners of highways, then any inconvenience or damage which the plaintiff has suffered by proper and reasonable repairs of the public highway is “ damnum absque injuria.” If the commissioners see fit, for the purpose of grading a highway, to cut down a hill, or to raise an embankment in the road adjacent to the premises and dwellings of citizens, by which those citizens suffer expense and inconvenience, no action can be maintained for the injury. This question was thus settled in the case of Graves v. Otis, (2 Hill, 466,) where the injury complained of -consisted in cutting down an eminence in a public street and sidewalk in the village of Water-town, by which the plaintiff^ store was left some six or eight feet above the level of the sidewalk adjacent to the premises. See also to the same point, 1 Pick. 418; 4 T. R. 794; 8 Cowen, 146; Sedgwick on Damages, 110.

We have not inquired whether it was necessary to allege in the plea that the value of the public interest in the road had been appraised and paid to the town commissioners, nor whether any other criticism may be applied to the plea. But we have assumed that the acts for which the action is brought were done in the legitimate exercise of the powers conferred by the statute, and were incident to the right of constructing a road of a proper grade, and so as to form a hard, smooth and even surface, as directed by the 6th section of the act. In doing this, we have complied with the request of the counsel of both parties; their object being to obtain a decision of the important constitutional question which we have discussed. But for any unreasonable exercise of the power conferred by the act, the agent is responsible; and if such a case can be made out, the plaintiff should have the opportunity to amend his declaration. %

The demurrer is therefore overruled, with' the right to'amén'd’ on payment of costs.