Hall v. Ragsdale

4 Stew. & P. 252

Opinion

Taylor, J.

The bill in this case was filed to prevent the use of a road which the complainant alleged, had been opened so near to his turnpike road, as greatly to impair his profits, and for the purpose of doing so; without such road being of any material benefit to the community.

The defendants in their answer, detfy that the road, which is complained of, was opened with the intention of lessening the profits of the complainant, and allege, that it is of great importance to those-who live upon or near it; that it runs at the distance of from three to eight miles'from the turnpike road of the complainant, and aífords a nearer and better route to the court house of Marion county, in one direction, and to Florence, their market town, in the other, than the turnpike; that the country between the two roads is generally mountainous, and that there are only one or two points from which it would be practicable to make a road from the principal settlements on and near the road complained of, into the turnpike road. All the material allegations of the answers are sustained bj the proof.'

In determining upon the propriety of granting relief in a case of this kind, many circumstances have to be taken into consideration. If the new road had been opened with the view and clearly for the purpose of impairing the profits of the turnpike road, and thus injuring the franchise of the complainant,' this would amount to a fraud upon the complainant’s rights, and,' in the general, be a sufficient ground for affording him relief. But the decision would not turn upon this ground alone, for in many cases although the intention was ’ simply to benefit the defendants and others; yet if the injury to complainant was great, without producing a correspondent public advantage, the new .road would be considered a nuisance, and ordered to be closed. Such was the case of the road leading to the newly erected bridge, in the case of the Newburgh Turnpike Company vs. Miller,

a and of the road around the turnpike gate, in the case of the Croton Turnpike Company vs. Ryder,b though in the latter case the road was evidently kept open with the intention of lessening the profits of the company. In the case of Gates vs. McDaniel, et al.c this Court determined that the franchise of an individual in a public ferry, would be protected from injury by others. In that case, a bridge was erected by the defendants, very near the ferry of the complainant, and to the destruction of his interests; and the use of the bridge, except by the families of the defendants, was perpetually injoined.

We have now to inquire whether the relief sought in this case iá within the reason given for affording it in the cases which have been cited.

It is contended by the counsel for the complainant, that the opening of any road, tending to impair his profits materially, no matter how important such road may be to the communitj'', is a violation of his rights under his charter; and that such road would be suppressed as a nuisance. But we can not assent to this doctrine. Our State is new — many parts of it scarcely settled at all; and we can not close our eyes to the well known fact, that such was the case in the part of the 'country through which the turnpike road of the plaintiff, and the road complained of now, run, at the time the former was .chartered.

While a country is in this situation, there .is use "for but few roads; and even were more desirable, the population is not sufficient to open and keep them in repair. But our population is rapidly increasing; and neighborhoods, from affording two or three families only, often, in the course of four or or five years, are densely populated — possessing ample ability to open and keep in order the roads necessary for their convenience. Therefore, when authority to establish a turnpike road, is given by onr general assemby, to any man, or company of men, it must be supposed to be done, with a view to this changing state of things; and that the grantees shall have no right to restrict the number of roads around them, to what it was when the charter was enacted, or their road prepared for use.

Under this view of the subject, the only questions $re, was it important to the interests of the in habi-tants, in the new and growing settlements on the road complained of, that it should be opened ? and would it be burdensome and oppressive upon them, to require them to abandon the use of that roau, and confine themselves to the turnpike? We think both questions must be answered in the affirmative; and therefore, that the complainant is not entitled to relief.

That the complainant will be protected in the enjoyment of every right which the charter was intended to bestow upon him, is certain. Therefore he cannot be deprived, in any way, 'of the profits arising from his road, while, he fulfils his part of the contract; nor will any man or set, of men be permitted to open a road, calculated to diminish those profits, unless such road would be of public advantage, and not, conflict with the intention of the legislature, in chartering the road of the complainant. But while the complainant would bo secured in his profits, and no road would be permitted to be opened, calculated to deprive him of them, even though of some public convenience; vet, when the interest of a portion of the community is to be greatly advanced, by making a new road, when it is oppressive to them, from great comparative increase of distance, the badness of the way to it, &c., to confine them to the use of the turnpike road, these important public benefits can not be sacrificed, because they incidentally affect the interests of the complainant: nor can we suppose that the general assembly, when enacting, nor the complainant, when receiving the charter, believed more extensive privileges to be secured by it, than are here recognised.

The decree must be reversed, the injunction dissolved, and the bill dismissed.

Lipscomb, C. J., not sitting.

5 Johns. C. R. 101.

1 Johns. C. R.611.

2 Stewart 211.