Hutchinson, C. J.,
after stating the case, pronounced the opinion of the Court. — The facts alleged in this writ of sicre fa-cias do not show the corporation responsible for the original laying out their road. The grant is for a turnpike road from Wells river, in Newbury, to a Mr. Twaddle’s in Barnet, as near Connecticut river as might be convenient. And it is averred that it might have been conveniently laid and made on the flat country, close by the river; yet it was laid and made back from the river, over high mountains, &c. But the same grant directed who should lay out the road, and placed it out of the control of the corporation. Now, to charge this wrong and deviation from the grant upon the corporation, there must have been some further allegation of some act of the corporation, or of their agents, inducing the committee thus to deviate from the grant. Nothing of that kind is alleged, and probably no facts would warrant the allegation. Just so of the allegation that the road was not wrought eighteen feet wide,as required by the statute grantingthe right to the defendants. This was a matter to be determined on the acceptance of the road. There might be substance in this allegation,if the acceptance of the road were the act of the corporation, or, were it under their control: but, by the statute, the road was to be accepted by the Supreme Court, or by a committee by said Court appointed. ..Qver this board the corporation had no control; and it cannot be presumed, at this late day, that they accepted the road unless it was [182] wrought as the law required. Moreover, its width now is no sure index of its width when first completed. The ground may have worn away upon one side,and fallen into the road upon the other; or ditches may have been gradually filled with dirt; or laborers may have followed a very common, but very improper, mode of repairs, to plow new ditches within the old ones ; thus rendering the road narrower by pretence of repair. In some or all of these ways, it may have become impossible now to determine the original width of the road. Yet the present width of the road may be important, upon the point of its being and remaining out of repair ; for it cannot be said to be in repair, unless it retains the width required by law at first. The meaning of repair is, to reinstate what is gone by use and decay. This applies, as well to width for teams to pass each other, as to elevations to keep the same teams from the mire.
The duty of the company to keep constantly up a sign board in view of the traveller, and exhibiting the rates of toll each travel-ler is liable to pay, is a very important duty. Without it, the tra-veller can have no means of knowing when, and how much, he is imposed upon. This duty is fully described in the writ; but the breach of it is insufficiently assigned. The assignment is, that the company have not constantly kept up such a sign board ; without averring when, or how long, the same was down. This averment might be true, if the board was unexpectedly blown down for an hour. There must have been some culpable neglect to keep up this board, and this should be specially averred in the writ.
Thus far the causes of complaint are not supported. But we discover no defect in the allegations with regard to the want of repairs. The allegations are, “ that the corporation has, at all times, suffered said road to be out of repair, dilapidated, and ruinous; so as to be dangerous and inconvenient to travel upon.” In this the public have a great and important interest. The trav-eller, who pays toll at a turnpike gate, is entitled to a road in good repair upon which to travel ; and the right of receiving toll of travellers is in consideration of the company’s furnishing a road to be travelled upon. A neglect in this particular, for any considerable period, is a good and sufficient cause of taking the forfeiture.
The power and propriety of decreeing a forfeiture are not affected by the right the public have to indict the company, or call «rut the turnpike inspectors. The process of indictment is to pun [183] ish for a temporary neglect, too trivial, perhaps, to occasion a forfeiture of the grant, or render it prudent to resort to so harsh a proceedure. The calling out the turnpike inspectors, is a remedy merely to prevent the company from receiving toll, while they neglect to repair their road so that the traveller can afford to pay toll for the privilege of travelling upon. it. Neither one, nor both of these furnish any adequate remedy for the public.— Indeed, their being resorted to at all, furnishes some evidence against the corporation, that they are not entirely performing the conditions of their grant.
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Hutchinson, C. J.,
after stating the case, pronounced the opinion of the Court. — The facts alleged in this writ of sicre fa-cias do not show the corporation responsible for the original laying out their road. The grant is for a turnpike road from Wells river, in Newbury, to a Mr. Twaddle’s in Barnet, as near Connecticut river as might be convenient. And it is averred that it might have been conveniently laid and made on the flat country, close by the river; yet it was laid and made back from the river, over high mountains, &c. But the same grant directed who should lay out the road, and placed it out of the control of the corporation. Now, to charge this wrong and deviation from the grant upon the corporation, there must have been some further allegation of some act of the corporation, or of their agents, inducing the committee thus to deviate from the grant. Nothing of that kind is alleged, and probably no facts would warrant the allegation. Just so of the allegation that the road was not wrought eighteen feet wide,as required by the statute grantingthe right to the defendants. This was a matter to be determined on the acceptance of the road. There might be substance in this allegation,if the acceptance of the road were the act of the corporation, or, were it under their control: but, by the statute, the road was to be accepted by the Supreme Court, or by a committee by said Court appointed. ..Qver this board the corporation had no control; and it cannot be presumed, at this late day, that they accepted the road unless it was [182] wrought as the law required. Moreover, its width now is no sure index of its width when first completed. The ground may have worn away upon one side,and fallen into the road upon the other; or ditches may have been gradually filled with dirt; or laborers may have followed a very common, but very improper, mode of repairs, to plow new ditches within the old ones ; thus rendering the road narrower by pretence of repair. In some or all of these ways, it may have become impossible now to determine the original width of the road. Yet the present width of the road may be important, upon the point of its being and remaining out of repair ; for it cannot be said to be in repair, unless it retains the width required by law at first. The meaning of repair is, to reinstate what is gone by use and decay. This applies, as well to width for teams to pass each other, as to elevations to keep the same teams from the mire.
The duty of the company to keep constantly up a sign board in view of the traveller, and exhibiting the rates of toll each travel-ler is liable to pay, is a very important duty. Without it, the tra-veller can have no means of knowing when, and how much, he is imposed upon. This duty is fully described in the writ; but the breach of it is insufficiently assigned. The assignment is, that the company have not constantly kept up such a sign board ; without averring when, or how long, the same was down. This averment might be true, if the board was unexpectedly blown down for an hour. There must have been some culpable neglect to keep up this board, and this should be specially averred in the writ.
Thus far the causes of complaint are not supported. But we discover no defect in the allegations with regard to the want of repairs. The allegations are, “ that the corporation has, at all times, suffered said road to be out of repair, dilapidated, and ruinous; so as to be dangerous and inconvenient to travel upon.” In this the public have a great and important interest. The trav-eller, who pays toll at a turnpike gate, is entitled to a road in good repair upon which to travel ; and the right of receiving toll of travellers is in consideration of the company’s furnishing a road to be travelled upon. A neglect in this particular, for any considerable period, is a good and sufficient cause of taking the forfeiture.
The power and propriety of decreeing a forfeiture are not affected by the right the public have to indict the company, or call «rut the turnpike inspectors. The process of indictment is to pun [183] ish for a temporary neglect, too trivial, perhaps, to occasion a forfeiture of the grant, or render it prudent to resort to so harsh a proceedure. The calling out the turnpike inspectors, is a remedy merely to prevent the company from receiving toll, while they neglect to repair their road so that the traveller can afford to pay toll for the privilege of travelling upon. it. Neither one, nor both of these furnish any adequate remedy for the public.— Indeed, their being resorted to at all, furnishes some evidence against the corporation, that they are not entirely performing the conditions of their grant.
Another ground of forfeiture is urged, the placing their toll gate on a road made by the inhabitants, where the company had no right to place it. Upon this point, the writ sets forth the laying of a public road by a committee appointed by this Court on the petition of Ira Goodrich and others, and the establishing the same by this court. That said road was laid between said turnpike road and Connecticut river. And that the same was partly made, and that by the inhabitants of the several towns through which it passes. Also, that a committee was afterwards appointed by this Court,on the petition of the majority of the members of said Corporation, and under a statute of 1822 ; which committee laid a road for said turnpike company, with little variations, the whole length on said road, laid out by said committee,, first appointed by this Court,, as before mentioned. That said committee, last appointed by this. Court,made their report and lodged the same with the clerk of this Court; but,that said corporation have never paid the damages assessed to individuals, nor paid for making said road, yet have placed their gate on the same road, and are demanding and receiving toll at the same. This seems to involve the question, whether the last survey becomes a turnpike road before the report is.accepted by this Court j for it is agreed that there is no acceptance. The docket minutes show, that the committee made their report of a surveyand nothing more is entered upon the docket. It is stated, that there was some litigation upon the subject last term, but it is clear no a.ct of the Court then gave any validity to the report. I well recollect, that when the last committee were appointed, so. great, and so reasonable opposition was made, and such was its effect on the Court, that my vote was necessary to produce the decision ; and I should have been opposed to the-appointment, had I not considered,that this Court would have a con,-troling power over the. report, when it should come in. And for that purpose we were cautious that the order to the committee [184] should especially direct them to make report to this Court at the then next term. I then thought, and still think, the act' of 1822 does not give force to the doings of the committee, till sanctioned by thisCourt. ^ differs altogether from the statute under which we acted at Burlington in appointing a committee to alter the turnpike road in Bolton. The views entertained by the Court at the time we appointed the committee whose doings we now consider, and which induced said appointment, were, that the corporation had a grant, and had been at great expense in making a road, which was rendered useless to them and the public by the bad lay of the road. That it was right the company should still have the benefit of their grant, if they would, at their own expense, put the road in the proper place. We were led to think it very probable, that the former committee, who laid the road near the river, had laid it judiciously. Now, if the new committee laid it in the same place, this Court would refuse to accept their report and establish the road by them laid, until the corporation should refund to the several towns the monies expended by them, which would now operate for the benefit of the corporation. We supposed this so well understood, at the time of appointment of the last committee, that we had no idea that the new committee would be called to act, unless the company intended thus to compromise with the towns upon the above principle. This is what still ought to be done •, and, without it, we do not seem disposed to sanction the e-rectingthe gate upon the road not made by the turnpike company.
Fletcher & J. Mattocks, for defendants.
Davis & Prentiss, for the people.
The defendants urge the hard consequences of dissolving the .corporation, with regard to their loss of property, their inability to •collect their debts, &c. As far as these consequences ought to bear upon the case, they will be considered in the exercise of the .equity powers given by the statute, after the facts are established which show a forfeiture.
For the reasons thus given the demurrer is overruled, and the allegations in the writ of scire facias are sufficient.
Before entering the said judgement, the defendants moved for leave to withdraw their demurrer, which was granted. Defendants to plead anew by July 1. Afterwards, upon the showing by affidavits, newly filed, the Court were induced to appoint a committee to appraise certain damages to Barnet, and report the state of the road at next term.