
    COURT OF APPEALS, JUNE TERM, 1820.
    Owings vs. The Baltimore and Reister’s-town Turnpike Road.
    iheiuft of isoC'cA «eyerMC01S°mpikf apapiiesCTifiym to r«ideFonSp”misS touch the road, and miles of a tumsa,e'
    Appeal from Baltimore county court. It was an action of assumpsit for money paid, laid out and expended, and for money had and received, brought by the appellant against the appellees. The following case was submitted to the county court for their opinion, viz. That the plaintiff, (now appellant,) resides on a tract of land situated ydthin three miles of the turnpike gate, No. 2, of the Baltimore and Ráster'1 s-tovm Turnpike Road, but that no part of the said tract runs with, binds bn, or touches the said road. That at many periods between the lpth of February 1814, and the 10th of February 1816, the plaintiff passed the said turnpike gate oftener than once in 24 hours, always paying, the first time of so passing, the accustomed toll. That on coming the second time to the said gate, during the same 24 hours, which often occurred, the plaintiff invariably protested against the demand made of toll from him by the gate keeper, he, the plaintiff, alleging that he was exempted from a second payment of toll on the same day, by virtue of the thirty-third section of the act of 1804, ch. 51, entitled, “An act to incorporate companies to make several turnpike roads through Baltimore county, and for other purposes, ” inasmuch as he resided within three miles of said gate, and adjacent to the said road; notwithstanding which, the defendants persisted in their demands, and would not at any time permit theplaintiff to pass oftener than once during the space of 24 hours, until he had paid toll for every time of so passing; by means of which the plaintiff has paid to the defendants in amount §200 for so passing, in a variety of instances, a second time, and oftener during the same 24 hours between the periods herein first stated, viz. the 10th of February 1814, and 10th of February 1816; for the recovery back of which money, so paid as aforesaid, the present action is instituted. On this statement the only question for decision was, whether a person x’esiding at a spot any where within three xniles of a turnpike gate, no matter how near thereto, whose land does not in any part thereof actually touch the road, can pass the gate as often as he pleases during the space of 24 hours, by paying toll once only during that period of time, by virtue of the thirty-third section of the said act. The county court gave judgment for the defendants, and the plaintiff appealed to this court.
    The case was ai’gued at this term, before Buchanan, Earle, Johnson and Dorsey, J. by
    
      Hoffman, for the appellant, and
    
      Winder and Harper, for the appellees.
    
      
      
         By this section, no toll is to be demanded from any person “living on or adjacent to the said road, within three miles of any of the said gates or turnpikes,” for passing the said gate more than once in twenty-four hours. '
    
    
      
      
         He cited Rees vs. Abbott, Cowp. 832. Wright vs. Kemp, 3 T. R. 473. Barker vs. Suretees, 2 Stra. 1175; and Farmingham vs. Brand, 3 Atk. 390.
    
   Buchanan, J.

delivered the opinion of the court.

In this case, which depends entirely on the thirty-third section of the act of 1804, eh. 51, incoi’porating several turnpike road companies, the court see no reason for doubt.

The privilege accorded by that section to persons residing on or adjacent to the turnpike road, w'ithjn three miles of any turnpike gate, by paying once in twenty-fotir hours, must be confined to persons who reside on premises which lie on and touch the road within three miles of the gate, pnd cannot be extended, as contended for by the appellant, to those who reside any where within a circle of three miles round the gate, whether they reside on premises which touch the road or not.

JUDGMENT AFFIRMED.  