Opinion
MARCH TERM, 1799.
E. Tilghman and Hopkins, for the Plaintiff.
Lewis, Ingersoll, M`Kean and C. Smith, for the Defendants.
THIS was an action of Indebitatus Assumpsit. The cause was tried at Lancaster, and the Jury found a special verdict in the following terms:
"The Jury find, that B. Breckbill, the Plaintiff, was seized in his demesne as of see in 216 acres of land, c.
"That the President, Managers c. (the Defendants) by and with their superintendants, surveyors, engineers, artists and chain bearers, workmen and labourers, with their tools c. entered in and upon the said tract of land, and laid out a road in through and over the same, 50 feet wide, and about 150 perches, in length, and caused 21 feet thereof to be bedded with pounded stone, well compacted together, a sufficient depth to secure a solid foundation to the same, and an even surface thereon, being the Turnpike road, agreeably to the act, c.
"That no express contract, or agreement, respecting the said entry, or any promise, or engagement, to make compensation for such entry, and for the land so taken and occupied by the said road, was made by, or ever existed between, the said Plaintiff, and the said President, Managers, c. (the Defendants)
"That all the roads heretofore laid out, or at present being in, upon, over or through the said tract of 216 acres of land, or any part thereof, including the said road so laid and made by the President, Managers c. do not occupy, take up, or waste 6 acres in every hundred of the said tract.
"But whether on the whole matter, by the Jurors aforesaid, in form aforesaid, found, the said Plaintiff ought to recover his judgment and damages against the said President, Managers c. the Jurors aforesaid, are entirely ignorant, and thereon pray the advice of the Judges of the Supreme Court.
"And if upon the whole matter aforesaid, by the Jurors aforesaid, in form aforesaid, found, it shall appear to the Judges of the Supreme Court, fitting in Bank, that the said Plaintiff is entitled to recover against the said President and Managers c. then they find for the Plaintiff, and assess damages to the said Plaintiff in the sum of six hundred dollars — besides his costs and charges by him about his suit in this behalf expended, and for those costs and charges, 6d.
"But if upon the whole matter aforesaid, by the Jurors aforesaid, sound, it shall appear to the said Judges, that the said Plaintiff is not entitled in point of law to recover against the said President, Managers, c. then the said Jurors aforesaid, on their oaths, c. do say, that they find for the Defendant."
Three questions arose on this special verdict: 1st. What is the nature and operation of the proprietary grants of land, with an allowance of 6 per cent for roads, c.? Is the power vested in the Turnpike company, to enter upon, take, and possess lands, consistent with such original grants, and the Constitution, unless compensation is made? And can an action of Indebitatus assumpsit, upon an implied promise, be maintained against a corporation?
For the Plaintiff, it was contended, 1st. That whenever lands were granted by patent, the allowance of fix per cent passed as absolutely as the rest of the tract, to the grantee, the whole being alike subject to the casement for roads. A mere right of passage, therefore, was all that remained with the Government. It remained too for public use, and could not be transferred by the Government to an individual occupant for private purposes. The Government might claim it, and might enjoy it forever; but until it was claimed for the public, and whenever it should cease to be enjoyed by the public, the freehold and occupancy of the grantee were perfect and exclusive. 1 Burr. 143. 146. This being the original nature of the contract, neither party can ever enlarge, abridge, or impair its operation; and, as on the one hand, the grantee could never deny the right of passage to the public; so, on the other hand, the public could never convey more than a right of passage to any body politic or corporate.
2d. But the act of Assembly does grant to the Turnpike company, more than the public right of passage, 3 Vol. 248. Dall. edit. It gives them, in effect, the fee, and extinguishes the grantee's right of occupancy, which could only be suspended, on the principles of the original grant, when, and so long, as the public should use the premises as a road. Again: it changes the character of the contract, which was, simply, formed between the grantor and the grantee, by introducing a third party, without the grantee's consent. And, finally, what was by the original contract a public reservation, is made an instrument of private emolument; so that the benefit of passage, which then was contemplated as a matter of common right, is now only to be enjoyed by those who will and can pay for it. But the Constitution says, that no man's property shall be taken, or applied to public use, without just compensation. If, therefore, even a public benefit is intended by the transfer of the rights of the grantee, together with the rights of the Government, to the Turnpike company, it can only be done upon the condition of an adequate indemnity. 2 Dall. Rep. 310. The act of incorporation impowers the company to purchase, take, and hold, in fee simple, all such lands, c. as shall be necessary to them in the prosecution of their works, not merely the lands over which the road actually runs: And, in every similar instance of a canal, the Legislature has expressly imposed the obligation of paying for whatever lands were appropriated to the work. State Laws, Dall. edit. 3 Vol. 136, 275. 362. 4 Vol. p. 251. The uniform principles of justice, as well as the positive provision of the constitution, are as strong to entitle the Plaintiff to an equivalent for his property, as an act of the Legislature.
3. The Plaintiff is entitled to recover in the present form of action. Indebitatus assumpsit is an extensive and equitable remedy, and ought to be applied whenever an obligation is raised upon moral principles, or natural justice. The authority given to the Turnpike company, to take private property for their use, accepted and exercised by them, creates a moral obligation to pay a reasonable equivalent to the individuals, whose property is so taken; and the Plaintiff, by bringing this action, waves the tort, on which he might, otherwise, have relied. A corporation act, certainly, under the same moral obligations as an individual; and to decide, that they are never liable upon an implied promise, would work infinite mischief and injustice; since they could not be made responsible for the personal trespasses of their servants; and it is impossible to compel a contract with the solemnity of the corporate seal. The power of the Legislature itself, did not extend further, than to grant the property, on condition that it was paid for; and, if it is not paid for, the law is unconstitutional and void. But the law is the cause of action; and the company's acceptance of the law, forms on their part the contract, or assumpsit, to pay the value of the land.
For the Defendants, it was contended — 1st. That as far as the 6 per cent. allowance for roads, the grantees of land were mere trustees for the public. It is immaterial on what principles roads were originally laid out in England; though, at present, it is known, that they can only be laid out by private grants, or by acts of Parliament, with a clause for making compensation. It has, however, been at all times the policy of Pennsylvania, that the government should be at the expence of establishing the public roads and highways. The very first article of the conditions and concessions agreed upon between William Penn, and the original adventurers, contains a provision that the public roads should be laid out at the proprietary's charge; 1 Vol. p. 6 Appendix Dall. Edit. but as it, also, contemplated the establishment of cities and towns, to which the roads should lead, a supplementary provision became necessary, to correspond better with the unimproved state of the country, and the allowance of 6 per cent. was made by the proprietary. 1 Vol. 37, 39. in Appendix Dall. Edit. For this additional quantity of land, the grantee never paid any price, nor rent: It was not even subject to taxation. These facts cannot be otherwise accounted for, than by the admission of another fact, that, although the possession was transferred, the government reserved the right to resume it at will, and without paying a compensation. The early laws of the Province bear the same inflexible aspect. There was no provision made for compensating any damages in establishing a highway, or public road; and with respect to private roads leading into the highway, provision was only made for compensating the damages done to improved land. 1 Vol. 16, 289, 290. Dall. Edit. It is, likewise, a circumstance greatly corroborative of this construction (though it has been differently used) that in the case of canals, for which no property had been designated or reserved in the public grants, the late laws contain an express clause, for making compensation to the owners of lands taken for public use; though such clauses are never inserted in any laws for establishing public roads, or highways.
2. If, then, the right of soil remained in the public, the government might either lay out the road itself, or it might contract with others to do it; and no stipulation of the original grant, nor any provision of the Constitution, can fairly be said to be violated. Nothing more is transferred to the Turnpike Company, than the public previously possessed, the right of establishing a permanent road; and the right of passage remains a common right, notwithstanding the toll; for, that is only a beneficial species of taxation, which relieves the townships from the expence of repairs, and charges it upon those who immediately enjoy the benefit of the road. 1 Bl. C. 357.
3. But, at all events, the present action cannot be maintained. The idea of an express contract with the Turnpike Company, is repelled by the finding of the special verdict; and an implied assumpsit cannot be maintained; for, a corporation can only contract by deed under the corporate seal. 1 Bl. Com. 475. 6 Vin. Abr. 268. 3 Salk. 103. 6 Vin. Abr. 292. 287,8. Kyd on Corporations, 1 Vol. 449, 450, 259, 268. Indeed, the court could not infer an implied promise from the facts stated; as the assumption, whether express, or implied, must be found by the jury; and the proper remedy, if the Plaintiff had suffered any injury, was an action of trespass against the agressors.
THE COURT, on the day succeeding the argument, delivered an unanimous opinion, that on this special verdict, the Plaintiff could not recover, in the present form of action, against the Defendants, as a corporation: And, therefore, they deemed it unnecessary to decide the other questions in the cause.
Judgment for the Defendants.