The Straits Turnpike Company against Hoadley, 11 Conn. 464

Williams, Ch. J. The General Assembly have authorised the erection of gates upon this road ; and under that act, the gate in question had been erected, for the space of eighteen years; and the question is, whether it has been done in such a manner as is not warranted by the charter. That any unauthorized obstruction upon a highway, to the annoyance of the public, or of all the King’s subjects, as it is expressed, is a nuisance, cannot be doubted. James v. Hayward, Cro. Car. 185. Rex v. Cross, 3 Campb. 324. 326.

Such as tend to annoy the whole community, are common or public nuisances ; and such as hurt or annoy the lands, tenements or hereditaments of individuals, are private nuisances. 1 Hawk. P. C. lib. 1. c. 27. s. 1. Anon. 1 Vent. 26. Prat v. Stearn, Cro. Jac. 382. But whether a public or private nuisance, if it is not authorized, by the act of the General Assembly, the plaintiffs had no right to place this gate in the highway; and, of course, the defendant might remove it.

It is said, that this charter must be construed strictly ; and although it gives a right to erect a gate, it gives no right to erect a house or roof over and across the road ; and nothing is granted but what is necessary to carry into effect the privileges granted. That the plaintiffs can have no authority but that conferred by their charter, is admitted; but that charter is to have a fair construction. The privileges granted corporations of this kind, are not principally for the benefit of the corporation, but for the sake of the public, in consideration of services rendered.

The state of most of our public roads was such, in the early history of turnpike grants, that to put them in good repair, would have been a burden, in many instances, too great for the towns to bear; and relief was gratefully accepted from those, who offered to do this public work, for the sake of a toll imposed by the legislature. And it is a well known fact, that in most instances, this toll itself has been a very small remuneration for the service rendered. There is nothing, therefore, in the nature of the grant, that requires any peculiar strictness of construction, as if it were against common right.

The object was public improvement, by private capital and at private risk. The charter, then, is to have a reasonable construction ; and such as will give to the grant a full and fair operation. It is said, by the defendant, that the charter gives a right to erect a gate only, not a house. The charter gives a right to collect toll. That is the great object, as it respects the privilege to the company; and to do this, they are expressly authorized to establish gates. The height and the width of these gates, and the manner in which they are to be hung, are not given in the act.

It must, then, be done in a reasonable manner. And if it has been done in the usual manner, and so as to interrupt or impede the public business but in a very slight degree, this is a reasonable exercise of the right. Now, as to the width of the gate, no complaint is made of that; but it seems, that twice since it was erected, a house and a load of hay passing along upon the road, could not pass between the side-posts. But no complaint seems ever to have been made on that account; and none certainly could have been successfully made.

These were operations entirely out of the usual course of business, and for which it was not reasonable that the corporation should have been prepared ; and the defendant does not contend, that they were bound to provide for such emergencies. But it is said, that a roof was not necessary for them to collect their toll; that it is no necessary part of the gate ; and the privilege of the gate only is given. Now, that a gate may exist without a roof over it, or a cross-beam, is true.

But that the one would greatly strengthen the side-posts of the gate and keep them in their place, and that the other would add much to the comfort of the toll-gatherer and the traveller, cannot be denied ; and that a cross-piece is usual, and that this was of the ordinary height, or higher, is not denied.

The fact, that in this case, it has remained here eighteen years, without any inconvenience to the public, and without the slighest injury to any individual, except in the cases before-mentioned, and that of the man who, in two instances, had loaded his empty casks so high that he was obliged to take off some of the top ones, is strong evidence that in the erection of this gate, public convenience was consulted, and a reasonable construction was given to this charter. Certainly, it cannot be said, that it tends to the annoyance of the whole community.

It was said, that although it was not of that character now, it might, by the changes in business, become so; and that if an obstruction of these dimensions were now justified by the charter, it would then be. This is not a question now before this court. But such a conclusion ought not to be drawn from this decision.

The course of business may so change, that what is now no public annoyance, may, by an alteration of circumstances, become a serious interruption to that business; and if a regard for their own interest and the convenience of the public would not lead these corporations to conform their arrangements to such altered state of things, it would be for the court to determine, under these circumstances, if they did not unreasonably obstruct the public road.

Upon the facts disclosed in this case, the court are of opinion that the defendant was not justified in the injury to this gate ; and that the superior court were correct, and that no new trial ought to be granted. The other Judges concurred in this opinion. New trial not to be granted,