Allen v. Buncombe Turnpike Co., 16 N.C. 119, 1 Dev. Eq. 119 (1827)

Dec. 1827 · Supreme Court of North Carolina

16 N.C. 119, 1 Dev. Eq. 119

James Allen v. The Buncombe Turnpike Company

From Buncombe

Where the Legislature authorised one to open a road and collect foils on it, a subsequent authority for a similar purpose to another, is valid, although it may diminish the profits of the first road.

The case made by the bill was, that the Legislature in the year 1801, granted to Job Bernard and Philip IJood-enpile, the right of opening a turnpike from the house of William Hunter, in Buncombe county, to the Tennessee Une, and authorised them to erect gates on the road, and collect toll from persons travelling on it. That the grantees at great labor and expense,had opened the road ts they were thus authorised, and had rendered it passable to travellers. The bill then set forth a partition of the road between Hoodenpile and Bernard, and a conveyance oF the eastern half thereof to the Plaintiff. That the Legislature, by an act passed in the year 1819, had recognised the property of the Plaintiff in the road, and in consideration of the great expense which he had incurred upon it, had extended the term during which he was authorised, to collect tolls thereon, until the year 1831. The Plaintiff alleged, that he had faithfully performed his duty to the public, by keeping his road in repair, and that he had done nothing to forfeit his franchise. But that the Legislature, in the year 1824, had incorporated several individuals, by the name and style of" The Buncombe'Turnpike Company” (the Defendant) and had authorized them to survey and "open a road from the Saluda Gap by the way of Smith’s,Murray ville, Asheville and the Warm Springs,to the Tennessee line.” That the route thus pointed out, within which the franchise of the defendant was to be exercised, interfered with that of the Plaintiff, and that the grant to the latter being the oldest, the Legislature did not intend to affect it by the grant to the Defendant. That the Buncombe Turnpike Company had recently surveyed and laid out a road, upon the route they were authorised by the act. incorporating them, to open — whiph after following the road of the Plaintiff, left it about three miles from its commencement at limiter's, and then diverged from it in such a manner, as greatly to injure the Plain tiff in the profits of his franchise, by enabling travellers to pass round his toll gates. The Plaintiff prayed that the Defendant might be enjoined from using any part of his road, and from entering thereon with the view of opening a l’oad, which would divert travellers from his gates.

A full answer was filed, but as the case was decided upon the allegations of the bill alone, it is unnecessary to give an outline of it, or of the mass of documents filed as exhibits.

The cause was heard upon bill and answer, by his honor Judge Norwood, who dissolved an injunction previously granted, and dismissed the bill without costs, from which decree, the Plaintiff appealed.

Gaston, for the Plaintiff,

contended, that the acts complained of were plainly injurious to the Plaintiff, and that his appropriate remedy was by injunction. He insisted that the plaintiff being in possession of a franchise, it could not be taken from him even for the convenience of the public, without giving him an equivalent. For this he cited (Croton Turnpike Company v. Ryder, 1 Johns. Ch. Hep. 6il — Ogden v.' Gibbons, 4 Bo. 150 — Jfetvburg Turnpike Company v. Miller, 5 Bo. IOC) '

Wilson & Badger, contra,

admitted that the Legislature, after granting a franchise, could not retract that grant, and give the same individual franchise to another. But they insisted that the Legislature had a perfect right to grant another franchise of the same kind, if the public convenience required it, of which they were the only judges. They contended, that the cases cited had no application, being cases in which mere private individuals, without a grant from the sovereign, had undertaken to do acts inconsistent with rights granted by that sovereign.

Hall, Judge.

— The Plaintiff does not charge in his bill, that the Defendants are about to divest him of a right, acquired under the act of assembly, to his turnpike road, or that the act of incorporation authorises them to do so 5 but that, in all probability, the travelling custom will withdraw from bis road, and a preference be given to that opened by the Company; and that his road is to be travelled over about three miles, before that of the Defendant's commences.

With respect to the last objection, it may be answered,that the Defendants by passing over his road, do not divest bis right; he can charge them, or any other persons, who travel it pro rata, for that distance, as well as a full price for using the whole of it.

As to the first objection, that the profits of his road will be diminished by the location of the Buncombe Turnpike Road in his neighborhood, it may be answered, that it is the province of the Legislature, to establish roads wherever they think the population and convenience of the country require it j and that private interest and individual convenience, must yield to the public good. It is not to be presumed on slight grounds, that the Legislature would incorporate a company to open a road for the purpose of oppressing an individual, or for any other object, except that of advancing the convenience of the community. Neither had the plaintiff a right to expect, when the grant was made to him, that no other of a similar kind would ever be made to any other person, in the same section of the State,

Improvement is the result of experience and observation, and the Legislature, Collected from all parts of the State, have a constitutional right to avail themselves of these means of knowledge. They have done so in the present case, and their 1mil must be the law by which it is to he governed. If the profits alone of the Plaintiff are to ho consulted, probably they would be lessened, if another road was opened any where within a day’s ride of his. Surely this cannot be the rule, by which the case is to be decided. It is unnecessary to descend to the particular circumstances of this case, as set forth in the bill, answer and exhibits. I think the general principles advanced, sufficient to decide that the hill should be dismissed.

Per Curiam.

— Affirm the decree below, except as to the costs, and decree that the Plaintiff pay the costs he. low, and in this Court,