
    *The People against Denslow.
    If an act give a turnpike company power to erect a toll-gate near a particular spot, they may place it on the very intersecting spot of an old road, so as the’gate be but near the place designated"; for near is not to be construed nearest.
    The defendant has been tried, and found guilty, at the last court of oyer and terminer for Columbia county, on an indictment for obstructing, in the city of Hudson, a public road or highway, leading from Poughkeepsie to Kinder-hook.
    On the trial, it was proved that the defendant was, under the appointment of the president and directors of the Columbia turnpike, keeper of a toll-gate, standing in the city of Hudson, directly across the road mentioned in the indictment, and which had been a public road for more than 40 years.
    On the part of the defendant, the exemplification of two acts of the legislature, incorporating a company, by the name and style of the president, directors, and company of the Columbia turnpike road, were given in evidence, and also a permission of the governor authorizing the erection of the gate, in pursuance of the seventh section of the law of the 29th March, 1799, incorporating the company.
    
      That of the 28th March, 1800, s. 3. directs, “ that the most westerly turnpike, or gate, shall be erected near the dwelling-house of John Van Hoesen, in the city of Hudson.”
    The testimony adduced, proved that it was placed 8 chains and 15 links from the house.
    From a map, submitted to the court, and agreed to by the parties it appeared that the gate in question was placed just at the very spot where the old road, for the obstructing of which the indictment was brought, intersected the turnpike ; so that it was impossible to pursue the old road without crossing the turnpike, and going through the gam in dispute, at which half toll was demanded.
    The matter for the consideration of the court was, whether under the words of the third section of the act of the 28'. h of March, 1800, the erection of the gate on that precise spot could be justified: if it could, then a nol. pros, to be entered.
    Spencer, (Attorney-General,) for the defendant,
    observed that he had, antecedently to his appointment, been originally retained for the defendant, and expressed his doubts whether he might not, by his official situation, be precluded from appearing in his behalf, but on being told by the court to ' go on, proceeded thus:
    *The only question is, whether the erection of the gate, at the distance from Van Hoesen’s house, mentioned in the case, is an erection within the words of the act There are two acts of the legislature to be referred to on this occasion. The first is the act of incorporation, passed the 28th March, 1799, establishing a turnpike corporation, by the name of the president, directors, and company of the Columbia turnpike road; the second enacted on the 28th of March, 1800, to amend the first act and route by certain particular alterations. The situation of the most westerly gate, the one now in dispute, is in specific words laid down. Whether they are complied with must be, after the facts are found, a question of law; for unless it be so, no settled determination can be made. The act says the gate shall be near the house of Yan Hoesen ; it is not ordered to be on the part of the road nearest to Yan Hoesen’s: are not, then, 8 chains and 15 links near ? Had the gate been placed more easterly, every person travelling the turnpike road might quit it at Glaverack, pursue the old road round the gate, and a little beyond it enter the turnpike again, without paying toll. It is true that by the 10th section of the first act, there is a penalty given for using the turnpike, and then going round the gates to avoid the toll; but this cannot apply to persons using an old road; nor could it be carried into effect, from the impossibility of being constantly on the watch. It is to guard against these inconveniences that the legislature has made use of this relative term “near,” in order to give a discretion to the company to place the gate where they may think it most beneficial to the interests of the stockholders. Have the president and directors outraged this discretion so confided to them ? That the gate catches people crossing the road, is no argument; and even in this, the directors *have shown their moderation; for they demand [*179] only half toll. From the map, it is manifest, if the gate be removed, that in numberless instances, from Kinder-hook to Glaverack, the tolls may be evaded. The effect would be to create a depreciation of 50 per cent, on the value of the stock. To prevent this, the legislature has given a discretionary power to erect the gate near Yan Hoesen’s, and can it be said that the company has violated the discretion confided in them for the management of the company’s affairs ?
    
      Foot and Woodworth, contra.
    The question is, whether the president and directors have a right to make people, who only cross the road, pay as if they had travelled along it ? There is nothing more, nor less presented by the case. The gate is fixed at the very place where the old road crosses the turnpike. It never could have been the intention of the legislature, by allowing a new road, to tax the old ; yet such is the consequence of the construction of the act now insisted on by the defendant. For it is evident, by looking on the map, that when the turnpike is crossed, and the old road pursued, the turnpike can never again be entered, on, for the old road comes in at the head of the city of Hudson. Had the legislature been told that the effect of the act they were about to pass, would be to levy a toll on the old road, they would certainly have hesitated. Allowing the word near to be, what it certainly is a relative expression, it must be taken to mean near, so as you do not attach the rights of the community, and set up your gate to catch people who travel along their own old road, and only cross yours.
    This is the only construction which can be equitable for the company and the community. The intent of the act was to give .a right of toll from those who travelled along the road the company had made; and therefore, against such, there is a penalty of ten dollars given for evading the rate allowed to be taken. This is enough to secure the company from tricks that might otherwise be practised. The word near must be understood by examining the intent of the act. The old road was considered when [*180] the act was passed, and it never was the object *of the legislature by the word near, to shut it up. This is a trick of the company to entrap the traveller, and this, the jury, by their verdict, have found, on a very full examination. The court will certainly, after this, be -cautious of saying “near" is this very spot. It is granted that the words of the act will be satisfied by it, but is there no other place which will do so ? and may not one be found, equally near, unattended with any of the inconveniences now objected against the gate ?
    
      
       29th March, 1799, c. 59, s. 7; 2 Rev. Laws, 398; 28th March, 1800 c, 69, s. 3; 2 Rev. Laws. 402.
    
   Livingston, J.

delivered the opinion of the court. The defendant has been indicted, and convicted, for obstructing a public highway in the city of Hudson.

He was keeper of a gate under the Columbia turnpike road company, and the gate he attends is erected 8 chains and 15 links from the house of John Van Hoesen. This gate has been set up under that part of one of the laws incorporating this company, which declares (Laws N. Y. v. 2, p. 402.) “ that the most westerly gate on said road shall be erected near the dwelling-house of John Van Hoesen and it is submitted to us to say, whether it has been placed conformably to these directions; if that should be our opinion, a not pros, is to be entered on the indictment.

It is not denied by the public prosecutor, that this gate is near Van Hoesen’s house ; but because it is not as near as it might be, and intercepts those who travel a certain road leading from Poughkeepsie to Kinderhook, and which crosses the turnpike'at this place, "he insists the gate should be removed, so as to occasion no interruption of this kind.

Whether this circumstance exists, or not, is foreign from our inquiry. The legislature, under a full knowledge of the different roads in that part of the country, have authorized the erection of a gate near this house, and have thereby invested a discretion in the company, which, it must have been expected and intended, would be exercised for their benefit. So long, therefore, as this gate be near to Van Hoesen’s house, which is conceded to be the case,

*we have no righ|to interfere, by saying that this [*181] discretion has been abused, or that the company have obstructed the highway leading from the south to the north: this would be the same as to say, that they shall not do what the legislature have given them permission to do. Our opinion, therefore, is, that this gate was erected pursuant to law, and the present prosecution cannot be supported. 
      
       See Farmers Turnpike v. Coventry, 10 J. R 389.
     