Opinion
(December Term, 1838.)
The circumstance that the turnpike company was induced to lessen their rate of toll in consequence of the encroachments and illegal acts of the defendant might perhaps be taken into consideration in an action on the case at law, but will furnish no reason for an account in equity for receiving or abstracting the plaintiff's tolls.
THE bill stated that the plaintiffs were incorporated by the Legislature into a company to lay out a turnpike road from the Saluda Gap, through the county of Buncombe, by Asheville and the Warm Springs, to the Tennessee line, with power to take tolls for the travel on said road not exceeding a table of rates set forth in the bill; that in laying out the road they were necessarily compelled, from the mountainous situation of the county, to run a few miles of the line of their road upon an old road that had theretofore composed part of a turnpike granted by the Legislature to two men by the names of Hoodenpile and Barnard; that the privileges once granted to the proprietors of the latter road had been forfeited, as well by nonuser as the omitting to comply with the conditions and stipulations contained in the legislative grant. The bill then stated that the defendant, pretending to be the assignee of the interest of Barnard in the old road, had also recently opened a new road, beginning on the Tennessee line 17 Miles north of the (116) western termination of the old Hoodenpile and Barnard road, and joining that old road west of that portion of the line where the plaintiff's run into and upon the said old road; that the defendant obtained from the Legislature the privilege of collecting tolls on the travel over his new road, with a view to enable him to keep the same in repair; that the defendant, instead of placing his toll-gate across some part of his new road, so as to receive toll from those only who traveled over it, as in law he had a right to, fixed his toll gate across the plaintiff's road at that small portion of their line which runs upon the old Hoodenpile and Barnard road. The bill then charged that by this conduct of the defendant all the travelers going east and west on the plaintiff's road were compelled to pay, in addition to the tolls due them, a second set of tolls to the defendant, although they did not travel more than two or three miles on the old line of road formerly Hoodenpile and Barnard's; which small portion of road the defendant pretended was his, as one of the assignees of Hoodenpile and Barnard, notwithstanding it was kept up by the plaintiffs as part of their long line of road; and that the defendant had received large sums of money from travelers on the road which he had no right to take. The bill then stated further, that the defendant not keeping his new road in repair (as he was bound as a condition of receiving tolls on that road to do), certain commissioners appointed by authority of law removed the defendant's toll-gate, but that the defendant had again set up his gate, in contempt of the law, and still continued to exact tolls of all the travelers passing over the plaintiff's road; that the plaintiffs, in consequence of the defendant's illegal acts, and the fear of the loss of traveling over their road, had been compelled to reduce their rates of toll one-fifth less than they were authorized by their charter to take, and that their profits had been diminished at least 20 per cent. The bill prayed for an injunction to restrain the defendant from keeping up his gate on the plaintiff's road, and also prayed an account of the tolls received by the defendant.
Attorney-General for plaintiffs.
No counsel for defendant.
The defendant answered and set up title as one of the assignees of the unexpired term of the grant of the turnpike road to Hoodenpile (117) and Barnard. He said that the plaintiffs run their road into his, against his will and consent; that he had received not more tolls that he was entitled by law to take for travel over his road; that the commissioners put down his gate, upon a view illegally made, when he was not present and had no notice, and that he set up his gate again by the permission of one of the commissioners.
The bill was filed in February, 1831, and an injunction was granted, with leave to the defendant, notwithstanding, to bring an action at law against the plaintiffs. When the answer came in, the cause was set for hearing upon the bill and answer, and on the hearing in October, 1833, the court dismissed the bill, and the plaintiffs appealed.
In looking into the several acts of Assembly under which the defendant claims the grant of turnpike privileges, it seems that the several terms of years therein mentioned expired at the close of 1831. The defendant having now no pretense to keep up a toll-gate across any of the roads, it is unnecessary for us to make any decision on this part of the case, as it is admitted that the gates put up by the defendant have not been kept up since the filing of this bill.
Secondly, we do not see any ground upon which the plaintiffs have a right to ask an account against the defendant. The defendant may have improperly exacted tolls from the public, but there is nothing in the bill which shows that he has ever received or abstracted one cent of tolls which by law and right belonged to the plaintiffs. The plaintiffs have always received their full amount of tolls from travelers according to the rates which they had established. The circumstances that the company were induced to lower their rate of tolls in consequence of the alleged encroachments and illegal acts of the defendant might perhaps have been taken into consideration in an action on the case at law; but it is no reason for an account in this Court for receiving or abstracting the plaintiffs' tolls. (118)
PER CURIAM. Affirmed, with costs.