The State of Connecticut against The Norwalk and Danbury Turnpike Company, 10 Conn. 157

Williams, J. This is an information in nature of a quo warranto, against the defendants, for erecting a turnpike gate on their road near Mrs. Benedict's, and North of TJmpawaug Hill. The facts are found in a special verdict; and the questions of law reserved. The defendants justify, 1. by the words of their charter; 2. by the construction which long usage and acquiescence have furnished ; 3. by the act of 1832, incorporating the Simpaug Turnpike Company.

The first inquiry is, does the act of incorporation authorize the location of the gate in this place l The charter empowers the proprietors to erect and establish a turnpike for the collection of tolls, in the most convenient place, to be by them determined. And it is a fact found, that the place originally determined upon, was the Georgetown iron works ; and although there have been several removals, it was not placed where it was at the time of this complaint, until November, 1831, about thirty-five years after its first location.

The proprietors then having the right to select such location as they should determine was a convenient one, did actually fix this location, in the year 1796. And the general rule, certainly, is, as to contracts, that when an election is given, and the person to whom it is given determines, that determination is final. 1 Rol. Abr. 726. l. 15. Com. Dig. tit. Election. C 2. It is claimed, however, that the rule is not applicable to cases of this character; as the circumstances which render it convenient or otherwise, are constantly varying.

So are often the motives which influence the mind in determining on other subjects. But let us look at the grant itself. Does it purport to give power to change, from time to time, the location of the gate, as circumstances may vary, or opinions fluctuate ; or merely to determine its original location 1 It gives a power to erect and establish a gate in the most convenient place, which is to be determined, by the proprietors themselves.

As the power is not given to commissioners, but to the proprietors, whose interest may not always coincide with the convenience of the public, to be exercised at their discretion, this authority ought not to be extended, by construction. What, then, do these words import ? They give power to erect and establish a gate. Now, these words are claimed to be synonymous. If so, one of them can mean nothing; or we may suppose, that one was intended to add to the effect of the other. The power of location is certainly given, by the first term, erect. This gives them power to put the gate in a convenient place.

This perhaps would imply, that it was to be continued there ; but the charter goes further : they may erect and establish a gate ; that is, fix, settle or confirm it. It is, then, to be erected and permanently confirmed, in the place these proprietors shall determine. And in the year 1796, they did determine, that it should be fixed or established at the iron works. It would seem, then, that they had completely executed the power and exhausted it.

It is said further, that it is to be placed where they shall judge it convenient; and that circumstances may make one place convenient, at one time, and another place, at another time. But if it was intended, that this should affect the power, nothing would have been more easy than to have added — and the same vary from time to time, as convenience may re quire. So far from this, the terms used do not import such an authority. This opinion is much confirmed, by that of the supreme court of New-York, in the case of Griffen v. House, 18 Johns. Rep. 397.

There the East gate was to be at such place, near the Massachusetts line, as the president and directors should direct. They erected the gate one mile and three quarters distant from that line ; afterwards, removed it East, about a mile from the line of Massachusetts. It was again removed to a place two miles and three quarters from that line.

The court held, that it was not near the line, within the act; but added further, that they inclined to the opinion, “ that where the discretion had once been exercised, the power is exhausted, and cannot be revived so as to authorize the company to change and move the gate to suit their convenience, without some strong and manifest necessity to warrant it.

Here the company have acted capriciously, and have lost sight of the trust reposed in them, by changing, several times, the location of the Easterly gate, contrary to their first opinion, and without any apparent necessity for it.” By the terms of the charter, therefore, the company had no right to place the gate at Mrs. Bene-dicks. It is claimed, howover, that having exercised the right of removal for almost forty years, they cannot now be disturbed ; and cases are cited where the court have refused to grant an information.

It is true, that the courts in Great-Britain have now a rule, that they will not grant such information after a quiet enjoyment even of six years. The King v. Dickin, 4 Term Rep. 282. Before this rule, it would seem, that when such a writ was granted, the right must be settled as in other cases. Rex v. Latham, 3 Burr. 1486. Be that, however, as it may, the gate complained of had not been in the position it then was sixty days before the information was filed; and cannot, therefore, claim the sanction of long enjoyment.

It is said, that the repeated removals which have taken place, are evidence of an acquiescence on the part of the public, and give a construction to the charter. Not one of these removals, until the one complained of, placed the gate North of Umpa-waug Hill; and it is not easy to see how the removal from place to place South of that point, can be evidence of acquiescence in its being located some miles North of that point. ^1086 now muc^ interested might feel it of no importance to in which of the positions it was South of that hill, and yet have a deep interest that it should not come North of it.

As to these removals giving a construction to the charter : if , , n . . ’ . the terms of the charter were ambiguous, acts done under it, for a course of years, would certainly have weight in ascertaining the true construction. But the fact that the gate had been removed, several times, below a certain point, would not import a right to remove it to any other place upon that road above that point. There is, then, no usage, which will justify the removal.

The only remaining question arises under the act of 1832 ; by which it is provided, that the defendants shall have “ the right, at all times, to maintain a gate on their said road, and collect toll thereat, at any place Southerly of said intersection, agreeable to the terms of their original charter.” With respect to this act, it is to be remarked, that it was passed after the information was filed, not upon the petition of this company, not upon any notice given of any application for this purpose, and not upon request of any person dir ecting that it should be done.

It is not to be presumed, that under such circumstances, the legislature intended, in this

summary manner, to interfere with the rights of parties litigating before this court; for although the state is here a nominal party, it cannot be concealed, that individual interests are deeply involved in this subject. By this act, this company are exonerated from keeping in repair the North part of that road ; and that burden is imposed upon the newly incorporated company.

They are also enjoined not to place a gate North of the point of junction of the new road with theirs ; and they have, in consequence, removed the gate South below that point where the Simpaug turnpike intersects theirs, but North of Umpawaug Hill. After this injunction, the act proceeds to allow them to collect toll, at any place Southerly of the point of intersection, according to their original charter. The fair construction of this act, is, to leave this company to enjoy all the rights granted by their original charter, except that of placing the gate North of the point of intersection.

Whether that right existed before or not, the legislature do not pretend to determine ; but as there is a gate now there, and as the road is no longer to be supported by that company, it is declared, they shall not have their gate upon the road of another company ; leaving' them, as to all other claims, to the enjoyment of all the rights they could claim under their-original charter.

Such a construction of the act incorporating the Simpaug Turnpike Company, does entire justice to the Norwalk uncí Danbury Turnpike Company, without leading to a construction, which involves these absurdities, that the legislature intended, or did actually grant, a privilege to this company, when they did not ask it; without any notice to persons interested j while a litigation was pending upon this very subject; and when the very same act exonerated the company from much of the burden, which would entitle them to this privilege.

The result is, that the superior court must be advised to render judgment against the defendants, that the company surrender the franchise claimed by them to place a gate North of Umpawaug Hill; and that no fine be imposed, or costs taxed. Daggett, Ch. J. and Church, J. were of the same opinion. Peters and Bissell, Js. gave no opinion ; the former being absent, and the latter being related to one of the stockholders of the Norwalk and Danbury Turnpike Company. Judgment to be rendered for the State.