founderous and out of repair as to become impassable, or even dangerous to be travelled over, or incommodious, the public have a right to go upon the adjacent ground; and it makes no difference whether it be sown with grain, or not.1 And indeed it has been holden, that if there be an highway in an open field, and the people have used, time out of mind, when the way was bad, to go by outlets on the land adjoining, such outlets are parcel of the way; for the king's subjects ought to have a good passage, and the good passage is the way, and not only the beaten tract; from whence it follows, that if such outlets be sown with corn, and the beaten tract be founderous, the king's subjects may justify going upon the corn.2 And in one case it was held, that where a man incloseth, and doth not make a good way, (as in such a case he is bound to do by reason of the inclosure,) it is lawful for passengers to make gaps in his hedges to avoid the ill way; so that they do not go further into his inclosed grounds, than is needful for avoiding the bad way. This, it may be observed, was the case of a footpath.3 4 § 6. But this privilege of going over the adjoining land, if the way be impassable or founderous is confined to highways; and the grantee of a private way cannot take advantage of any such liberty. This was decided by the case of Taylor v. Whitehead. And that decision is confirmed by the later case of Bullard v. Harrison,5 in which the locus in quo was a private way; and it was endeavored, but without success, to establish this right of traversing the adjoining land, upon the plea of necessity. Lord Ellenborough, in delivering the judgment of the Court, said: The question intended to be agitated upon this 1 See 1 Roll. Ab. 390, A., pl. 1, and B. pl. 1. 2 1 Hawk. P. C. c. 76, s. 2. 3 Henn's case, Sir W. Jones, 296. See also, Absor v. French, 2 Show. 28, pl. 19; 2 Lev. 234, S. C.; and Young v. 1 Ld. Raym. 725. 4 Doug. R. 745. 5 4 M. & S. R. 387. record is, whether, in the case of a private way, the grantee may break out and go extra viam, if it be impassable, as in the case of a public way. As to that I consider Taylor v. Whitehead1 has settled the distinction, that the right of going on the adjoining land extends not to private, as well as to public ways. § 7. Again, public highways, in reference to position or locality, may be called urban, suburban, and rural, although the same principles of law apply to each. Where a private act of Parliament empowered a water company to "break up the soil and pavement of roads, highways, footways, &c., and public places,'" it was held, that the word "footway," as there used, meant those footways in large towns which are too narrow to admit of carriages and horses, and not a path over a private ground. "Looking," says Burrough, J., "at the general purview of the act, and the context, it is clear that the word footway means one of those paved ways running by adjacent buildings, and not a path over a private ground.”2 3. Turnpike Roads. § 8. A distinct class of highways has been created under the appellation of turnpike roads, which are, in general, constructed by incorporated companies with provisions in the act of incorporation for their management. And the legislature has power to authorize a turnpike company to lay out their road upon a common public highway. The same diligence, it may be stated, is required of turnpike companies, which is demanded by towns, to insure safety to travellers, upon other highways, and they, as well as towns, are primarily 3 1 Taylor v. Whitehead, Doug. R. 745; and see Pomfret v. Rycroft, Saunders, 323, note b; Williams v. Safford, 7 Barb. (N. Y.) Sup. Ct. R. 309; Holmes v. Seeley, 19 Wend. (N. Y.) R. 518. 2 Scales v. Pickering, 4 Bing. R. 448. liable to the traveller.1 And if the corporate franchise of a turnpike company extends to the building of toll-houses within the corporate limits, they would be forfeited, if turned to uses foreign to the original purpose.2 3 § 9. A turnpike road is distinguishable from highways in general, by the manner in which the expense attending the construction and maintenance of it is defrayed, viz., by tolls collected from the passengers. The principal question in Commonwealth v. Wilkinson, in the Supreme Court of Massachusetts,* was whether a turnpike road, in that State, was a highway, and whether an action would lie against any person for an obstruction thereon as a public nuisance; and, by Shaw, C. J.: “We think, that a turnpike road is a public highway, established by public authority for public use, and is to be regarded as a public easement. The only difference between this and a common highway is, that instead of being made at the public expense in the first instance, it is authorized and laid out by public authority, and made at the expense of individuals in the first instance, and the cost of construction and maintenance, is reimbursed by a toll, levied by public authority, for the purpose. Every traveller has the same right to use it, paying the toll established by law, as he would have to use any other public highway." 1 Mathews v. Winooski Turnpike Co. 24 Vt. R. 480. 2 Fisher v. Coyle, 3 Watts, (Penn.) R. 407. 3 3 Stephens, Comm. 259; Northern Bridge and Road Co. v. London and Southampton Railway Co. 6 M. & Welsb. R. 428. 4 Commonwealth v. Wilkinson, 16 Pick. (Mass.) R. 175. 5 And see Buncombe Turnp. Co. v. Baxter, 10 Ired. (N. C.) R. 222. And see Clarkville, &c. Turnp. Co. v. Atkinson, 1 Sneed, (Tenn.) R. 426; Louisville and Nashville Turnp. Co. v. Nashville and Kentucky Turnp. Co. 2 Swan, (Tenn.) R. 282; Turnp. Road v. Brosi, 10 Harris, (Penn.) R. 29; Sturtevant v. County of Plymouth, 12 Met. (Mass.) R. 7; Stormfeltz v. Turnp. Co. 1 Harris, (Penn.) R. 555; and see 2 Ibid. 152. Under the provisions of the charter of a turnpike company, which gives the right to recover damages for an injury occasioned by the insufficiency only to those from whom toll is demandable, the person injured may sustain an action, if toll were demanded of him at any gate upon the road, although he was not, at the time of the injury, passing, or intending to pass, § 10. The penalty of the payment of a sum of money, imposed by statute upon any person who shall "forcibly or fraudulently pass any gate on any turnpike or plank road, without having paid the legal toll, is not incurred by an individual who merely passes through a gate with his team, and offers a bankbill in payment of the toll, and refuses to pay in any other way." To make the passage fraudulent, some artifice must be employed, or some deception practised on the toll-gatherer.1 In the absence of a toll-gatherer, his wife will be deemed to be his agent, for the purpose of demanding and receiving toll.2 § 11. As to exemption from tolls. Under the Act of the State of New York of 1849, in relation to turnpike roads, all persons travelling over a turnpike road in going to a religious society of any sect, creed or denomination, having for their professed object the worship of God, and which are tolerated by the Constitution of that State, whether such persons go for the pure purpose of conducting, or of uniting in the exercises of devotion, are equally exempt from the payment of toll. And persons thus exempt from the payment of toll, may, may, if compelled to pay it, maintain an action against the toll-gatherer for the penalty imposed by the statute for demanding and receiving more toll than by law he is authorized to collect.3 through or near any gate. Brown v. Winooski Turnp. Co. 23 Vt. R. 104; 22 Ibid. 14. Where a turnpike company have established its toll-gates within the distance authorized by law, and have fixed the rates of toll at the several gates, so as not to exceed the legal rates of toll for the entire distance, and for the distance between the several gates, they may lawfully exact the full toll at a particular gate; though the traveller may not have travelled upon the road a distance which, at the legal rate per mile, would amount to such toll. Mallory v. Austin, 7 Barb. (N. Y.) Sup. Ct. R. 626. 1 Monterey and Plank-road Co. v. Faulkner, 21 Barb. (N. Y.) Sup. Ct. R. 212. 2 Marselis v. Seaman, 21 Barb. (N. Y.) Sup. Ct. R. 319. 3 Skinner v. Anderson, 12 Barb. (N. Y.) Sup. Ct. R. 648. Conkling v. Elting, 2 Johns. (N. Y.) R. 410; and Norvall v. Cornell, 16 Ibid. 73, were decided under the provisions of the Act of 1813, which differed essentially in its terms. And see Chetney v. Coon, 8 Johns. (N. Y.) R. 150. § 12. Erecting a toll-board, with rates of toll, written chiefly in the small Roman letter, though but of a size to be legible at a distance of three roods, is a compliance with the statute requiring them to be in "large capital letters.”1 § 13. It is not a ground of forfeiture of the charter of a company, that they do not, in all cases, charge the full tolls authorized by the charter; and, unless forbidden by the charter, they may commute tolls for an annual sum.2 4. Plank Roads. § 14. What are called plank roads, (the name of which indicates the material used in their construction,) now extensively used in different portions of the United States, are public highways when established by law. They are established, like common turnpike roads, and like them public, in the sense that every citizen has the right to travel on them, either on foot, on horseback, in his carriage, or with his team, subject to the payment of legal tolls.3 3 § 15. A common public highway, taken by a plank road corporation, by virtue of the statute and of its act of incorporation, in New York, does not cease to be a public highway; and on 1 Nichols v. Bertram, 3 Pick. (Mass.) R. 342. 2 Commonwealth v. Alleghany Bridge Co. 8 Harris, (Penn.) R. 185; and so of a canal company, Delaware and Hudson Canal Co. v. Pennsylvania Canal Co. 9 Harris, (Penn.) R. 131. 3 Fort Edward and Fort Miller Plank-road Co. v. Payne, 17 Barb. (N. Y.) Sup. Ct. R. 567; Rensaeller v. Plank-road Co. 21 Barb. (N. Y.) Sup. Ct. R. 56; Plank-road Co. v. Husted, 3 W. & Smith, Ohio R. 697; Benedict v. Goit, 3 Barb. (N. Y.) Sup. Ct. R. 459; Commissioners of Highways, (matter of,) 15 Barb. (N. Y.) Sup. Ct. R. 136; McAllister v. Albion Plank-road Co. 11 Barb. N. Y.) Sup. Ct. R. 610; 1 Kern, N. Y. (Court of Appeals,) 102; Plank-road Co. v. Thomas, 8 Harris, (Penn.) R. 91; Same v. Ramage, Ib. 95; Same v. Rineman, Ib. 99; Mallory v. Austin, 7 Barb. (N. Y.) Sup. Ct. R. 626. See "Practical Compend of the Powers and Duties of the Commissioners and Overseers of Highways, in the State of New York," Auburn, 1851, 19–54; and “General Railroad Law of the State of New York," in reference to the crossing by a railroad over a plank road, p. 93, Rochester, 1853. |