such as forcibly pass their gates. Where such penalties are prescribed, the mere passing a turnpike gate, and refusing to pay toll when demanded, is a forcible passing, if the person so passing be liable to pay toll;1 but simply riding through, without payment, and without any force or violence, or refusal to pay, will not expose a traveller to the penalty. And a person, who is exempted, in respect of his business at the time of passing, from the payment of toll, does not incur the penalty, though he shall refuse to pay toll, and forcibly pass the gate without making known his business, or notifying the tollgatherer of his exemption.3

3. Travel upon Canals.

§ 365. The doctrine of the common-law, that neither party can recover for damage which has resulted from mutual negligence, has, in this country, been applied to canal boats. The "Canal Regulations," in New York, have adopted, for the regulation of canal navigation, what is essentially the American law of the road; that is, when boats meet on the canals, it is the duty of the master of each to turn out to the right, so as to be wholly on the right side of the centre of the canal.* If, at the time of the collision, both boats, either through negligence or design, are near the centre of the canal, neither having turned sufficiently to the right, whatever injury results, is the common fault of both parties, and the owners of each boat must submit to the injury done to them, in consequence of the mutual default. Every boat navigating the New York canals in the night-time, is also required to carry conspicuous lights on its bow; and a want of lights on the bow, when it is so

1 Pingry v. Washburn, 1 Aik. (Vt.) R. 264; Nichols v. Bertram, 3 Pick. (Mass.) R. 342.

2 Columbia Turnpike Co. v. Woodworth, 2 Caines, (N. Y.) R. 97.

3 Green Mountain Turnpike Co. v. Hemmenway, 2 Vt. R. 512; Pingry v. Washburn, 1 Aik. (Vt.) R. 264.

4 1 New York Rev. Stat. 248, § 154; Ib. 695, § 1.

dark as to require them, is negligence.1 In Dygert v. Bradley, the defendant's boat, in navigating the canal, came violently into collision with that of the plaintiff, while lying-to, near one of the locks, waiting her turn to pass. It was held, that it was not enough, that the defendant managed his boat in a prudent and skilful manner, but that he was also bound to know, whether, from the state of the water in the canal at the time, and from the size of his boat and her being heavily laden, he could pass the plaintiff's boat without hazard; and, if there were hazard, either not to have made the attempt to pass, or, having the control of the speed of his boat, to have proceeded so slowly and cautiously, that no injury could have been produced from the collision.2

§ 366. In the construction of a State law in New York,3 it has been held, that, in passing the Erie and Champlain canals, freight-boats are bound to afford every facility for the passage of packet-boats, as well through the locks, as elsewhere on the canal. And where a freight-boat, passing on the Erie canal, was waiting for the emptying of a lock, when a packet-boat overtook her, it was held, that the packet-boat should pass first. On request, the master of the freight-boat, refusing to consent to this, the master of the packet may use all necessary means to obtain the preference due to him, short of a breach of the peace; as, by pulling back the freight-boat, and forcing his own forward, doing no unnecessary damage to the freight-boat. Should the freight-boat be detained or injured, through the obstinate resistance of the master to the exercise of the right of preference of the packet, this is the fault of the former, for which he cannot recover damages against the master of the latter.4

1 Rathburn v. Payne, 19 Wend. (N. Y.) R. 399; Ang. on Carriers, § 637.

2 Dygert v. Bradley, 8 Wend. (N. Y.) R. 469.

3 Passed April 13th, 1820, sess. 43, ch. 202, § 4 and 10.

4 Farnsworth v. Groot, 6 Cowen, (N. Y.) R. 698.

367. Under the laws of Pennsylvania,1 where an ascending and descending boat have to pass each other, near to, or at a narrow place in the canal, constructed for the purposes of inland navigation, it is the duty, as between themselves, of the ascending boat to wait at such distance from such narrow place, as to permit the descending boat to pass with safety; and if any injury be sustained by the descending, through a non-compliance of the law on the part of the ascending boat, the latter is liable in damages for such injury. It is, however, the right of persons plying on the canal, to stop their boats for a reasonable time to unlade, taking care to select an eligible place to do this,—that is, a place so wide that other boats can pass with safety, and to have their boat thrown close to the beam-side of the canal at both ends. And, it has been held, that where the boat of a third party, thus properly moored to the bank of the canal, is concerned, and the ascending boat will not comply with the act of the assembly aforesaid, it is the duty of the persons having charge of the descending boat, to keep her at a proper distance, and under their control, so as to insure safety; and if, through culpable negligence, or a want of due caution in passing each other, a collision takes place, through, and by which, the descending boat is driven against and staves in such third boat, the owners, or persons in charge of the descending boat, are answerable in damages for the injury sustained by such third boat. The dereliction of duty on the part of the ascending boat, will not authorize the master of the descending boat to abandon his duty to a third person, and thereby subject him to loss; though, it seems, in the event of loss under such circumstances, the injured party is entitled to look for indemnity to the owners of both boats.2

§ 368. Where a canal is made, pursuant to an act of the legislature, the right of the proprietors to take toll is derived

1 Act of April 10, 1826, § 7.

2 Sheerer et al. v. Kissinger et al. 1 Penn. (Barr,) R. 44.

entirely from the act, and is to be considered as if there was a bargain between them and the public, the terms of which are expressed in the statute; and the rule of construction is, that any ambiguity of the terms of the contract, must operate against the company of adventurers, and in favor of the public. The proprietors, therefore, can claim nothing which is not clearly given them by the act.1

§ 369. By the ninth section of the charter of the Chesapeake and Delaware Canal Company, the company are empowered to demand and receive certain tolls upon articles therein enumerated, and upon all other articles, not enumerated, in the same proportion; and the charter proceeds: "Every boat or vessel which has not commodities on board to pay the sum of four dollars, shall pay so much as, with the commodities on board, will yield the sum aforesaid; and every empty boat or vessel, four dollars, except an empty boat or vessel returning, whose load has already paid the tolls affixed, in which case, she shall pass toll-free." And, by the eleventh section of the charter, it is declared, that "the canal and works to be erected thereon, in virtue of the charter, when completed, shall forever thereafter be esteemed, and taken to be navigable, as a public highway, free for the transportation of all goods, com

1 The Proprietors of the Stourbridge Canal v. Wheeling and others, 2 B. & Adol. R. 792; Gildart v. Gladstone, 1 East, R. 675; The Dock Company of Kingston-upon-Hull v. Browne, 2 B. & Ad. R. 58; Barrett v. Stockton Railway Co. 2 Man. & Gr. 134; 2 Scott, N. R. 339. For other English decisions upon the right of canal companies to demand and receive tolls, see Leeds and Liverpool Navigation Co. v. Hustler, 1 B. & C. R. 424; 8 E. C. L. R. 118, overruling the case of Hollingshead v. Liverpool and Leeds Canal Co. 2 B. & Ald. R. 66; Frazer v. Swansea Canal Co. 3 Nev. & M. R. 391; Jenkins v. Cooke, 1 Ad. & El. R. 372; Staffordshire and Worcestershire Canal Co. v. Trent and Mersey Canal Co. 6 Taunt. R. 151; Monmouthshire Canal Co. v. Kendall, 4 B. & Ald. R. 453; Brittain v. Cromford Canal Co. 3 B. & Ald. R. 139; Lees v. Manchester Canal Navigation, 11 East, R. 645; Rex v. Tone Conservators, 1 B. & Adol. R. 561; Regina v. Leicestershire and Northampton Union Canal Co. 3 Railway Cases, 1; Hall v. Grantham Canal Navigation, 13 Law J. (N. S.) 583; Hall v. Grantham Canal Co. 13 Mees. & W. R. 114.

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modities, or produce whatsoever, on payment of the toll imposed by this act; and no tax whatsoever, for the use of the water of the said canal, or the works thereon erected, shall at any time. hereafter be imposed by all, or either of the said States." In a case before the Supreme Court of the United States, the following questions occurred upon the construction of this charter: First, is the canal company entitled to charge compensation or toll for passengers on board a boat passing through the canal? Second, has any one a right to navigate the canal, without leave of the company, for the transportation of gers, with passenger-boats, paying, or offering to pay, toll upon the boats, as empty boats, or upon commodities on board, but without toll or compensation for passengers? The Court held, as to the first question, that the charter conferred upon the company no right to demand or receive toll for passengers. "The articles upon which the company is authorized to take toll," was the language of Taney, Ch. J., "are particularly enumerated, and the amount specified. The toll is imposed on commodities on board of a vessel passing through the canal. No toll is given on the vessels themselves, except only when they have no commodities on board, or not sufficient to yield a toll of four dollars. Passengers are not mentioned in the enumeration, nor is any toll given upon a vessel on account of the persons or passengers it may have on board. Now, it is the well-settled doctrine of this Court, that a corporation created by statute is a mere creature of the law, and can exercise no powers except those which the law confers upon it, or which are incident to its existence. And as no power is given to this corporation to demand toll from passengers on board, it is clear that no such power can be exercised, and no such

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1 Head and Amory v. The Providence Ins. Co. 2 Cranch, (U. S.) R. 127 ; Dartmouth College v. Woodward, 4 Wheat. (U. S.) R. 636; Bank of the United States v. Dandridge, 12 Ib. 64; Charles River Bridge v. Warren, 11 Pet. (U. S.) R. 544; Bank of Augusta v. Earle, 11 Ib. 587.