Hartford v. Hosmer , 12 Conn. 361 ( 1837 )

Williams, Ch. J.

The general principle, that when a turnpike company are authorized to locate their gates, and have located them, they cannot change such location at their pleasure, has been recently settled, by this court, in the case of The State v. The Norwalk and Danbury Turnpike Company, 10 Conn. Rep. 157. That case received the deliberate consideration of this court; and we have seen no reason to retract or alter the opinion then given.

The position of the gates upon a turnpike road, is a matter in which the company, on one side, and the public, on the other, are deeply interested. So far as the power of location is granted to the corporation, or its officers, so far are courts bound to support it. But it is a power of that kind which can make no claim to be extended by implication. Is there, then, any substantial difference between the case above referred to and this? It is said, that the word “establish” in that charter, is much relied upon, in the opinion of the court. It is true, that this word is alluded to, in that opinion, as aiding the construction given, though the principle decided, is, that the company having once fixed the location, the power given them is exhausted ; and it is added, that the word “ erect” would perhaps imply, that the gate was to be continued there. But in this charter, as in that, the company are authorized to “ erect and establish” gates, &c. In this respect, there is, therefore, no real ground of distinction.

It is further said, that in this charter there is a restriction that the gates shall be within certain points, and not nearer than nine miles of each other. It is not apparent how the fact that the discretion of the company was limited to the original location, will prove, that their powers were increased after that location; or that because, in one case, their powers were less than those of the Norwalk and Danbury Turnpike Company, therefore, they were greater in another. But if it were so, it appears, that before this corporationjwent into operation, and to enable them to act, an alteration of the charter was procured, by which that restriction was removed, and they had a right to place the gates as near each other as they chose.

It is impossible for us to see any important distinction between the powers conferred by this charter and those of the company so often referred to ; and the subject does not require, nor would it justify, nice and subtle distinctions.

The plaintiffs also claim, that there has been no such change as can be called a removal of the gate. We do hesitate to say, there must be a real change of location. We have no idea that a change of the position of a gate-post would be a removal, nor perhaps a trilling amotion of the gate itself.

But it does not follow, that there must be a road intersecting the turnpike between the places of the former and the present location. Although it is apparent, that many more persons would probably be affected, by such a fact; yet all the property, or at least all the property consisting of dwelling-houses, must be, in some measure, affected, by such alterations. It may be indeed slight • but still it is entitled to the protection of the law against a trifling injury, unless a fair construction of the charter authorizes the company to inflict it. Now, if a change of location in the distance of half a mile, is not a removal, because no road insersects, the same reason would hold, if there was no intersecting road for three or four miles ; and of course, the relative position of a considerable tract of country, with regard to the gate, might be changed. We cannot, therefore, adopt this as a sound distinction; and we feel bound to say, that these gates have been removed. And while in this case, we see no reason to suppose the company have abused the power they claim to have, we think they have failed to shew, that' they possessed it; and are, therefore, of opinion, that a new trial must be denied.

In this opinion the other Judges concurred, except Huntington, J., who gave no opinion, being related to one of the stockholders.

New trial not to be granted.