his destination without passing upon adjacent lands, he is under a necessity so to do; that is to say, the act to be done can only be accomplished in that way. Such a temporary and unavoidable use of private property, must be regarded as one of those incidental burdens to which all property in a civilized community is subject.1

2

§ 354. In the case above referred to, it was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compensation to the owner. But it was remarked by the Court in reply: "If such an accidental, occasional, and temporary use of land can be regarded as an appropriation of private property to public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of temporary and impassable obstructions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be assumed that the right to the use of land adjoining the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned." And it was also held, that this right was not impaired by the duty imposed upon towns, in this country, to keep their highways in suitable repair, and to be liable for the damages occasioned by the want of such repair.

§ 355. Having its origin in necessity, this right, it has been said, must be limited by that necessity; cessante ratione, cessat ipsa lex. "Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases

1 Ibid. 411, 412.

2 Campbell v. Race, supra.

of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impassable obstructions in the highway. What shall constitute such inevitable necessity or unavoidable accident, must depend upon the various circumstances attending each particular case. The nature of the obstruction in the road, the length of time during which it has existed, the vicinity or distance of other public ways, the exigencies of the traveller, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive province of the jury to pass, in order to determine whether any necessity really existed, which would justify or excuse the traveller."1

2. Travel upon Turnpike Roads.

§ 356. Travel upon turnpike roads is regulated by the same rules and principles as travel upon ordinary roads and streets. It is chiefly distinguished from the latter kind of travel by the fact that it is burdened with tolls. Toll, in the restricted sense in which it is here used, is the price of the privilege of travel upon this particular species of highway. At commonlaw, there are two sorts of toll, viz.: toll thorough and tolltraverse. Toll-traverse is the price paid for passing over the private soil of another, and may be claimed by prescription, the license to pass being the implied consideration for the claim.2 Toll thorough is the price for passing upon a public highway, and rests upon the principle which governs every grant, viz. that he who receives it, does, or did something as an equivalent to him who pays it. It is strictly a quid pro quo; and, to support a prescription for this species of toll, it is not enough to prove an immemorial usage to take the toll,

1 Per Bigelow, J., in Campbell v. Race, supra.

2 7 Com. Dig. 478, Toll, (D., a.); Cro. El. 711; James v. Johnson, 2 Mod. R. 143; Pelham v. Pickersgill, 1 Term R. 660.

2

without also showing the consideration upon which it rests.1 In Truman v. Walgam, the defendant pleaded, to an action of trespass, for stopping the plaintiff's wagon on the highway in Gainsborough, prescription for toll through the streets of Gainsborough, in consideration of repairing divers streets there; and the plea was adjudged bad, because it did not say that the defendant repaired all the streets; and, for any thing that appeared, the plaintiff might have been passing through a street which the defendant did not repair. "Courts," it was observed, "are exceeding careful and jealous of these claims of right to levy money upon the subject; these tolls began and were established by the power of great men." But if a person, claiming a toll for passing over an highway, can show that the liberty of passing over the soil, and the taking of toll for such passage, are both immemorial, and that the soil and the tolls were, before the time of legal memory, in the same hands, though severed since, it will be presumed that the soil was originally granted to the public in consideration of the tolls, and such original grant is a good consideration to support the demand.

3

66

§ 357. In this country, it has been held in Vermont, that the enjoyment for more than twenty years, without molestation, of a right to take toll upon a public highway, is equivalent to an express grant so to do. Indeed," said the Court, "under special circumstances, the dedication of private property to public use, or the abandonment of a right to use such property by the public, and its surrender to private use, will be presumed in a much less time than the usual term of prescription." 4 In

1 7 Com. Dig. 477, Toll, (C.); Haspurt v. Wills, 1 Mod. R. 47; Warren ». Prideux, Ib. 104; Smith v. Shepherd, Cro. El. 710; 3 Dane, Abr. 178, ch. 76, art. 11; 15 Petersdorf, Abr. 62.

2 Truman v. Walgam, 2 Wils. R. 296.

3 Pelham v. Pickersgill, 1 Term R. 660; Yarmouth v. Eaton, 3 Burr, R.

4 Barton Turnpike Co. v. Bishop, 11 Vt. R. 198.

Massachusetts, however, it has been held, that if a turnpike road has not been lawfully laid out, the allowance of it by the Common Pleas, and the existence of it as a turnpike road, de facto, for nearly twenty years, gives no right to demand toll, "if," say the Court, "such a right can, by any length of time, be established." 1 But in this country, and, indeed, in England, this right is almost universally granted by statutory enactments, and can be exercised only in strict compliance with the terms of the grant. If there be any, ambiguity in the language of such grant, it will be construed rather in favor of the public than of the grantee. And, inasmuch as this right depends upon the varying provisions of special statutes, each statute being encumbered with multitudinous qualifications designed to subserve the wants and the policy of particular localities, the cases on this subject necessarily relate rather to the construction of these statutes than to an exposition of principles, and are not, therefore, of sufficient general interest to justify more than a merely cursory consideration.

2

3

4

§ 358. Tolls are not demandable for travelling on turnpike roads between two gates, without passing a gate, or unless the gate be shunned and the road travelled again; though it has been held, that even if travellers travel the road until they come near the gate, and then turn aside into another road, they are

1 Fales v. Whiting, 7 Pick. (Mass.) R. 225.

2 “The imposition of toll," says Wellbeloved, "to be applied to the maintenance of a road, is the revival of an old principle, but with some difference in its adaptation to practice. Under the ancient system of tenures, the lord of the soil frequently claimed the privilege of receiving tolls from all who travelled along his highway; nor was this esteemed a mere bounty, for he was liable, in consideration of such toll, to keep the way in good order, and, in some countries, even to defend the passengers from depredations. There was an instance in France, where the lord was fined for permitting a merchant to be robbed upon his highway." Wellbeloved on Highways, p. 252:

3 Post, § 368.

4 Lexington and Georgetown Turnpike Co. v. Redd, 2 B. Mon. (Ky.) R. 31; per Williams, C. J., in Fowler v. Pratt, 11 Vt. R. 381; Centre Turnpike Co. v. Vandusen, 10 Ib. 197.

every

liable to pay the toll.1 In New York, it is enacted, that “ person who, to avoid the payment of the legal toll, shall, with his team, carriage or horse, turn out of a turnpike road, or pass any gate thereon, on ground adjacent thereto, and again enter on such road, shall, for each offence, forfeit the sum of five dollars to the corporation injured." Under this act, if a traveller turns off at a place little more than half a mile from the gate, it will be held a turning off on "ground adjacent to the gate," within the meaning of the act. And it makes no difference that the person, after turning off, travels upon an old highway for the distance of six or seven miles before again entering the turnpike road, nor that other persons have been in the habit of doing so; the question being, whether he turned off, bonâ fide, or with a view to avoid paying toll.2 But if, in such a case, the party does not again reënter the turnpike road, he is exempt from toll, though his purpose in turning off was to evade its payment.3

§ 359. Exemptions from the Payment of Toll. Clauses in statutes, conferring an exemption from the payment of toll, are construed most liberally in favor of the immunity. Thus, where the toll prescribed in the charter of a turnpike company was twenty-five cents for a four-wheeled pleasure-carriage, and for a wagon ten cents, it was held, that a vehicle, which was a four-wheeled pleasure-carriage and a wagon, was subject to

1 Fitch v. Lothrop, 2 Root, (Conn.) R. 524.

2 Carrier v. Schoharie Turnpike Co. 18 Johns. (N. Y.) R. 56; The Watervliet Turnpike Co. v. M’Kean, 6 Hill, (N. Y.) R. 616; 1 Rev. Stat. 588, § 55. 3 Centre Turnpike Co. v. Vandusen, 10 Vt. R. 197. In New Hampshire, it has been held, that case lies against the selectmen of a town for laying out a highway, merely for the purpose of enabling travellers to evade the payment of toll at a turnpike gate. But if the public convenience should require that a road be laid out to a turnpike, it may lawfully be done, although it may enable passengers to evade the payment of toll. Proprietors of the Third Turnpike Road v. Champney, 2 N. Hamp. R. 199; Cheshire Turnpike v. Stevens, 10 N. Hamp. R. 133.