3 U.S. 496 (1799)

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U.S. Supreme Court


3 U.S. 496 (Dall.)

Breckbill v. Turnpike Company

Supreme Court of Pennsylvania March Term, 1799

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 fee 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, sitting 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

    Page 3 U.S. 496, 497

    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, found, 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 six 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 six per cent passed as absolutely as the rest of the tract, to the grantee, the whole being alike subject to the easement 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.

2nd. 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. [3 U.S. 496, 498]

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