
    The People of the State of New York, Respondents, v. The President and Directors of the Williamsburgh Turnpike Road and Bridge Company, Appellants.
    To form a sufficient foundation for a judgment of ouster against a corporation for the forfeiture of a franchise not originally usurped, but legally vested, because of the breach of a condition subsequent, the verdict must show the fact, not merely of the breach of the letter of the subsequent condition, but of its intent and meaning, and must find such facts as the court may adjudge to amount to a substantial breach of the condition.
    Where, after the lapse of over fifty years from the incorporation of a turnpike company and the construction of its road, an action was brought to vacate its charter on the ground of misuser in omitting to comply with the provisions of the general turnpike law in the original construction of the road, and also in failing to keep the road in repair,
    
      Held, that the fact must be established not only of a deviation from the statute, in the construction of the road, but that the road was thereby rendered injurious or inconvenient to the public; that the company was not bound to continue the road in the same condition required in its original construction, but only in a good state of general repair; and that to warrant a forfeiture for an omission to keep in repair, it must be alleged and found, that the want of repair was such as to render the road dangerous or inconvenient to travelers.
    A special verdict differs from the findings of a court or referee in this, that the jury cannot be presumed to have found more than is specified in then- verdict, and a general verdict directed by the court upon the strength of the special findings does not add to their force or effect.
    (Argued February 7, 1872;
    decided March 26, 1872.)
    • Appeal from judgment of the G-eneral Term of the Supreme Court, in the second judicial district, affirming a judgment entered on the verdict of a jury in favor of the plaintiffs.
    The defendant was incorporated as a turnpike company by a special act of the legislature, passed March 11, 1814, and completed its road shortly after its incorporation in that year. It had, for upward of fifty-five years prior to the commencement of this action, used the privileges and franchises conferred by its charter.
    This action was brought by the Attorney-G-eneral to exclude the defendant from its corporate rights, privileges and franchises on the ground of misuser.
    The complaint sets forth various omissions in the original construction'of the road to comply with the requirements of the general turnpike law of 1807, and also alleges a failure to keep the road in order and repair.
    The answer consists of a general denial of these allegations.
    The action was tried before Mr. Justice Tappex and a jury, at the Kings county Circuit in October, 1870.
    On the conclusion of the evidence, the judge submitted to the jury the following questions :
    
      First. Has the defendant’s road been constructed and bedded with stone, gravel, hard wood or other hard substance, well compacted together and of sufficient depth to secure a good and solid foundation to the same; faced with gravel or broken stone of a depth not less than nine inches, in such manner as to secure a firm and even surface, rising in the middle by a gradual arch ?
    
      
      Second. Was the arch or bed of said road twenty-eight feet wide, except where, on account of the steepness of side hills, or rocks, rendered it impracticable, in the opinion of the commissioners, to make and finish the road of the full width, it may be contracted to not less than twenty-four feet?
    
      Thwd. Was the road made with ditches on each side; made so as to render the passage of sleighs easy, except where contracted as mentioned in the last interrogatory, and then-with a ditch on the upper side ?
    
      Fourth. Was the road, where it was less than twenty-five feet wide, furnished with a strong and sufficient fender, or railing, of the height of not less than four feet above the surface of the road ?
    
      Fifth. Have the defendants continued their said road in substantially the same condition as is specified in the preceding interrogatory up to June 1st, 1870 ?
    
      Sixth. Have the bridges over Hewtown creek been constructed with a good and sufficient railing thereon, and covered with plank not less than three inches thick ?
    
      S&oenth. Have the defendants kept and maintained the said bridges, and the causeways made, in good and sufficient repair up to June 1st, 1870 ?
    The jury found a verdict answering each of these questions in the negative, and, thereupon, the judge directed a general verdict in favor of the plaintiffs, and to such direction the defendants’ counsel excepted.
    Before the submission of the case to the jury the counsel for the defendants requested the judge to charge that the people could not, after the lapse of fifty years, which had occurred since the creation of the corporation and the building of its road and bridges, claim that its franchises should be forfeited by reason that said road and bridges had not been originally constructed in pursuance of the general turnpike law of 1807.
    The judge refused so to charge, and the defendants’ counsel excepted.
    
      
      Hewry ITicoll for appellants.
    A corporation will not be deprived of its franchises for misuser where the acts complained of occurred more than twenty years before the institution of proceedings. (Rex v. Dawes, 4 Bur., 2022; Rex v. Martin, 4 Bur., 2120 ; The King v. Stacey, 1 Ter. Rep.; Kanouse v. Martin, 3 Sand., 656; People v. Richardson, 4 Cow., 97.) Statutes affecting rights and liabilities should not be so construed as to act upon those already existing, unless the intention so to act is expressly declared. (Johnson v. Burrill, 2 Hill, 238.) A single omission to keep a road in good and sufficient repair will not work a forfeiture of corporate franchises in the absence of any willful or negligent violation of duty. (The People v. Bristol and Rensselaerville Turnpike Company, 23 Wend., 222; The People v. The President, etc., of The Manhattan Company, 9 Wend., 352, 375.)
    
      Philip S. Crooke for respondents.
    The general verdict was not erroneous. (Foster v. Jackson, Hob., 53; Fraschieris v. Henriques, 6 Abb., N. S., 263 , 3 Salk., 373; Williams v. Williams, 7 Abb., 90; People v. Waterford Co., 2 Keyes, 327, 341.) Non-compliance with the requirements of an act of incorporation of a turnpike company as to the construction of the road is, fer se, a misuser, forfeiting the privileges and franchises conferred. (23 Wend., id., pp. 206, 208; 23 id., p. 222; The People, etc., ex rel. McKurch and others v. The Bristol and Rensselaerville Turnpike Road Co., 23 Wend., p. 254; The People v. The Hillsdale and Chatham Turnpike Road, 23 Wend., p. 254; Id., 258 ; Utica Ins. Co. v. Scott, 8 Cow., 721, judgment of ouster; The People v. Waterford Co., 2 Keyes, 327.)
   Rapallo, J.

It was claimed upon the argument by the learned counsel for the appellants that at common law no information in the nature of a quo wa/rranto could be brought against a corporation for a forfeiture of its franchises by misuser, when the acts complained of occurred more than twenty years before the institution of the proceedings; and in support of this proposition he cited the cases of Rex v. Dawes (4 Burr., 2022), Rex v. Marten (4 Burr., 2120), and The King v. Stacey (1 T. [D. & E.] R., 2).

The rule laid down in those cases was first established in 1763, in the Winchelsea Causes (4 Burr., 1963), of which litigation those cited are a part, but it has no reference to the class of cases to which this action belongs. It related to cases arising under the statute of 9 Anne, chap. 20, which authorized the exhibition of an information in the nature of a quo warranto, on the relation of any person desirous to prosecute the same, by leave of the Courts of Queen’s Bench and the sessions of the counties Palatine and of Wales, against persons unlawfully holding certain municipal offices or franchises in cities, towns and boroughs.

The cases in which the rule was adopted were applications for leave to file informations against various persons claiming to be freemen of the borough of Winchelsea, who had acted as such for many years; and the substance of the rule, which was unanimously adopted by the judges of the K. B. (4 Burr, 1962), was, as stated in the MS. note of Tates, J., cited in The King v. Clarke (1 East, 40, 41), “ that the court would not give leave to a common relator to commence a prosecution in the nature of a quo warranto after an acquiescence of twenty years; and that, although short of that time, they would not grant an information unless it appeared to be a proper case.” The power to allow an information under the statute of Anne was held to be discretionary, and the court adopted the limit of twenty years as one beyond which they would not listen to an application for leave to prosecute, while within that period the granting of it rested in their sound discretion. But it was at the same time conceded that no length of time would establish a right against the crown, and that if H. M. attorney-general were to file an information on behalf of the crown, the defendant’s long enjoyment would be no bar without showing a good title. (King v. Wardroper, cited 1 East, 41; 1 T. [D. & E.] R., 3.)

Under the Revised Statutes no period of limitation was fixed in respect to proceedings of this character on behalf of the people. Suits and prosecutions in respect to liberties and franchises were expressly excepted from the provisions limiting the time for the commencement of actions by the State. (2 R. S., 293, § 2; 23 Wend., 248.)

The present action was brought by the State, acting by the Attorney-General, and no rule of the common law and no statute prior to the Code can be found, limiting the period within which it might be brought. By the Code, title 2, chap. 1, the statute of limitations, as contained in the Revised Statutes, was repealed and a new chapter substituted. The period of limitation of actions brought by the State for the recovery of real property was extended from twenty to forty years. The exception of actions concerning liberties and franchises was omitted. Certain classes of actions were specified, to each of which a period of limitation was assigned; and it was further provided that actions for relief not specially provided for must be commenced within ten years after the cause of action shall have accrued. A new and most important provision was added in 1849, viz.: That the limitations prescribed in that chapter should apply to actions brought in the name of the people of this State or for their benefit, in the same manner as to actions by private parties. (Code, § 98.)

If there is any limitation of the time for bringing an action of this description, it can only be found in this section. It is useless, however, to pursue that inquiry in the present case, for the reason that by section 74 of the Code it is provided, that the objection that the action was not commenced within the time limited, can only be taken by answer. That defence has not been interposed, and consequently cannot be now considered.

But although the defence of the statute of limitations is not available for the reasons mentioned, the defendants’ request to charge that the people could not, after the lapse of fifty years, claim a forfeiture of the charter, on account of deviations in the original construction of the road, from the requirements of the act of 1807, presents the very serious question whether so long an acquiescence does not amount to a waiver by the people of the breaches of condition charged, or, if not technically a waiver, whether it does not presumptively establish such a want of materiality in the deviations charged, as would prevent them from being of themselves sufficient causes of forfeiture.

The corporation was legally formed, having been created by special act of the legislature. The alleged ground of dissolution is not any defect in its organization, but the misuser of its franchises. Franchises may be forfeited by breach of the trust on which they were granted, and perversion of the end of the grant or institution. (Com. Dig. Franchises, G. 3.) The performance of the duties enjoined by the charter is a condition of the grant.

The statute, (Code S., 430), authorizes the bringing of an action to vacate the charter of a corporation whenever such corporation shall offend against any of the provisions of the act creating it, or shall have violated any law, and forfeited its charter by abuse of its powers. But it is for the court to determine as to the sufficiency of the offence to work a forfeiture.

The conditions in question in this case were conditions subsequent, and a failure literally to comply with them was not necessarily a cause of forfeiture; a substantial performance was all that was required. (23 Wend., 586.)

Materiality in the deviations in the construction of the road, from the directions contained in the act of 1807, and injury to the public resulting from such deviations, were most essential ingredients of the plaintiffs’ case.

In the case of The People v. Thompson, (21 Wend., 235) an act authorizing the construction of a bridge required that there should be an opening between the centre arches of not less than twenty-five feet, for the passage of vessels. An information, in the nature of a quo warranfo, was filed against the persons exercising the franchise for a violation of this condition, and the jury, by a special verdict, found that for ten years past the opening had been less than twenty-five feet. On this verdict judgment of ouster was rendered by the Supreme Court, that court overruling the objection that the verdict failed to show that the variation was material or injurious to the public. But that judgment was reversed by the Court of Errors on the ground that, to enable the court to pronounce judgment of ouster, the verdict must find not merely the breach of the letter of a condition subsequent, but of its intent and meaning, and that if the verdict find only particular facts which do not show affirmatively any certain and substantial breach of condition, judgment of ouster cannot be rendered. That the finding that- the opening was not of the required breadth of twenty-five feet without finding that it was material, or that injury had resulted, or was likely to result to the public, or that the condition had not been substantially performed, was insufficient to sustain a judgment of ouster. (Thompson v. The People, 23 Wend., 537, 540, 582 to 585.)

The first, second, third, fourth and sixth questions submitted to the jury, and answered by them in the negative, relate wholly to the manner of constructing the road in 1814. They are nearly in the words of the act of 1807; and it is evident, on reading them, that the most minute and trivial variation from the precise requirements of the statute would have required the jury to find as they did. The jury were not required to find, and did not find, as to the extent or materiality of the deviations, or whether any injury to the public had resulted or was likely to result from them, or whether there had been any substantial breach of the conditions of the charter in those respects; and therefore, according to the principles laid down in the opinion of Senator Veeplanck, which was the prevailing opinion in the case of Thompson v. The People, judgment of ouster could not properly be rendered on those findings. (23 Wend., 584.) But in the case of The People v. The Kingston and Middletown Turnpike Company (23 Wend., 193), the Supreme Court, Cowen, J., dissenting, sustained, on demurrer, replications alleging causes of forfeiture in nearly the same language as those of the five findings now under consideration. Whether or not the replications in that case contained averments which would bring them within the principle of the case of Thompson v. The People, does not appear in the case as reported; but it must be observed that the case of The People v. The Kingston and Middletown Turnpike Company was decided in May, 1840, more than six months before the reversal of the judgment in The People v. Thompson (21 Wend.), and that, according to the views then entertained in the Supreme Court, it was only necessary for the prosecution to establish a failure to comply literally with the terms of the statute, and it was not required to show that such deviation was injurious to the public, but the burden of showing an excuse for non-performance was held to be on the defendant. The prosecution in that ease, however, was instituted within a vei-y short time after the construction of the road, and, assuming that the case is not overruled by Thompson v. The People, it did not present the question which arises in the present case, whether after the lapse of fifty-five years from the construction of the road, a variation in the original construction from the specifications contained in the act is of itself a cause of forfeiture, and whether in such a case there is not a legal presumption, from the great lapse of time, that the variation was immaterial and not injurious to the public. The original method of construction of the roadbed, fifty-five years before the commencement of this action, is hardly important to the present generation; for although the company may have been bound originally to put it in a certain condition, they were not bound to continue the road in any respect precisely as it was originally constructed. (People v. Bristol and Rensselaerville Turnpike Co., 23 Wend., 231, 232.) All that they were bound to do was to keep it in a good state of general repair. (Id.) After the lapse of fifty-five years, very little would have remained of the original road-bed, and to say, for instance, that the charter should be forfeited now, upon the allegation that fifty-five years ago there was not nine inches of gravel or stone facing upon it, or that it did not rise in the middle with a gradual arch, or that a ditch was not dug at the side, when the people of that day and generation did not complain, and for all that we can know, at the present day, its condition was then satisfactory to the public, would be carrying the doctrine of forfeiture for misuser to an extent which I do not believe to be warranted by any precedent.

If in the original construction of the road there were any permanent defects arising from a failure to comply with the statute, which rendered the road injurious or inconvenient to the public, no doubt that would be a continuing wrong and a just foundation for this proceeding. But the fact must be established, and the injury to the public is as essential an ingredient of the right of action as the deviation from the statute.

It certainly ought not to be presumed after an acquiescence of over fifty years, so as to render the failure to comply with the statute in 1814 sufficient cause, of itself, for a forfeiture of the charter.

The fourth finding is subject to a further objection that it establishes no cause of forfeiture, for the reason that a fender was not required by the act of 1807, where the road was less than full width, except under certain circumstances, which are not found to have existed. (23 Wend., 231.)

I think, therefore, that the facts found in the 1st, 2d, 3d, 4th and 6th findings were not sufficient, after the lapse of fifty years, to warrant a judgment of ouster, even if they would be sufficient at any time, in the absence of a finding, that the deviations were material and that injury resulted therefrom.

The two remaining findings are the 5th and 7th. These are insufficient for the reason stated in the case of The People v. The Bristol and Rensselaerville Turnpike Co. (23 Wend., 231). The defendants were not bound to continue the road in the same condition required in its original construction, and a finding of omission to keep in repair, in the general terms employed in this verdict, is insufficient.

To warrant a forfeiture it must he alleged and found that the want of repair was such as to render the road dangerous or inconvenient to travelers. (23 Wend., 221.) The judge having instructed the jury that the company was bound to keep the turnpike in the same condition in which they were required by law to construct the same, the 7th finding would be satisfied by proof of a failure to keep up the required amount of facing, although in other respects the road was in sufficient repair for ordinary purposes. Furthermore, the finding does not specify the túne when or extent to which the road was out of repair; it covers the whole period from 1814 to 1870, and would be satisfied by a single omission during that period. The Revised Statutes (2 R. S., 587, §§ 45, 46, 47) provide a remedy, far short of a forfeiture of the corporate franchises, for ordinary delinquencies of this description; and although the remedy thus provided may not be exclusive of all others, yet where a forfeiture is claimed, by reason of such an offence, the court must judge whether the extent or degree of the offence is such as ought to subject the corporation to capital punishment, or whether the party complaining should be left to the remedy pointed out by the statute. No such judgment can be formed unless the record disclose the facts upon which the determination of such a question must depend.

The defects in these findings cannot be cured by intendment. The general verdict was directed by the court on the strength of the special findings, and does not add to their force or effect. A special verdict does not stand on the same footing with the findings of the court or a referee. The court or referee renders the judgment, and may be presumed to have found facts not expressly stated. But where the verdict is special the jury cannot be presumed to have found more than is specified in their verdict.

To form a sufficient foundation for a judgment of ouster for the forfeiture of a franchise not originally usurped, but legally vested, the verdict must show the fact, not merely of a breach of the letter of the subsequent condition, but of its intent and meaning, and must find such facts as the court may adjudge to amount to a substantial breach of the condition. (23 Wend., 587, 588.)

The findings of the jury in this case fall far short of this requirement, and it would be unsafe to give our sanction to a judgment resting on so defective a foundation.

The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.

All concur.

Judgment reversed.  