
    The President and Managers of the Chambersburg and Bedford Turnpike Road Company against The Commissioners of Franklin County.
    Monday, October 16.
    down and a place" PreManagers of bersburg and °fB¿gf^g^urn‘ company, the fhecountyf which the Company had to* their own use. The materials furnished by the county of Franklin for the erection of a bridge over the Conococheage creek, became, when that bridge was nulled
    In Error.
    AN amicable action was entered in the Court of Common Pleas of Franklin county, in which the defendants in error were plaintiffs, and the plaintiffs in error defendants, and a case, of which the following is the substance, was stated for the opinion of the Court, subject to review on a writ of error, at the instance of either party.
    In the year , a bridge was erected at the expense of the county of Franklin, over West Conococheague where the public road leading from Chambersburg to London in the said county, crosses the said creek. The commissioners of the said county contracted and paid for the building of the said bridge, a large sum of money, viz., the sum § , and the necessary legal proceedings had been had in due form, to enable the said commissioners so to contract and pay for the same, according to the acts of assembly in such case made and provided. The bridge so erected, was composed of stones, wood, and a large quantity of iron, and known by the name of a chain bridge. The defendants are a body politic and corporate, duly created by letters patent under the hand of the Governor of this Commonwealth, and the seal thereof, in pursuance of the act of assembly authorising the same, by the style and title of the President and Managers of the Chambersburg and Bedford Turnpike Road Company, with the powers, authorities, and privileges, and subject to the duties, qualifications, penalties, and restrictions given and granted by the several acts of assembly in that case made and provided. The said defendants laid out and founded a turnpike road over the said creek and public road, where the said bridge was erected as aforesaid, and on the day of , , entered on the said public road and pulled down and removed the said bridge, and converted the materials of which it was composed to their own use; the iron whereof, the said defendants sold for a large sum, viz., the sum of g 1 , and the said defendants shortly after pulling down the said bridge, erected at the same place, a certain other bridge, built entirely with stone, sand, and lime, forming part of the said turnpike road, which the defendants were authorised to make by the said acts of assembly, and which said last mentioned bridge, has been ever since used with convenience and safety in crossing the said creek at the said place, and is more convenient than the chain bridge, which was seldom used as a passage by the public, except when the state of the creek required it.
    If the Court should be of opinion upon the preceding statement of facts, that the plaintiffs were entitled to recover, they were to declare what should be the measure of damages, and enter judgment generally for the plaintiffs; the amount to be ascertained by referees. If it should be their opinion, that the action could not be sustained, judgment was to be entered for the defendants.
    By an act of assembly passed on the 24th of February, 1806, (8 Bio. L. 18,) the Governor was authorised to incorporate a company, for the purpose of making an artificial road, from the bank of the river Susquehanna opposite the borough of Harrisburg, to Pittsburg. The 8tli section of that act, authorised the company to enter enclosures, &c., through and over which the intended turnpike road might be thought propér to pass, to examine the ground most proper for the purpose, and the quarries and beds of stone and gravel, and other materials in the vicinity, which might be necessary in constructing the road; and provided, that if any persons should suffer damage in consequence of the laying out and founding the said road over and upon their land, they should make application to the Court of the county in which such damage should have been done, who should appoint six fit and disinterested persons to view and adjudge the amount of the damage done, which, if approved by the Court, should be paid by the company.
    The 9th section, authorised the company, under certain conditions and restrictions, to enter upon the lands, in, over, contiguous, and near to which the route and tract of the said intended road should pass, and to cut down, dig, take and carry away, any timber, stone, gravel, sand, earth or other materials, there being most conveniently situated, for making or repairing said road.
    The 10th section, directed the company to erect permanent bridges over all the waters crossed by the said route or tract, wherever the same should be found necessary, and prescribed the width of the said road, and some other things which it is 1 ° not necessary to mention.
    The 11th section declared, that as soon as the company should have completed the said road, they should, or when any ten miles thereof were made, they might give notice to the Governor, who should appoint three skillful and judicious persons to view and examine the same, and report to him whether it was so far executed in a complete and workmanlike manner, and if their report should be in the affirmative, he was required by license, under his hand, and the less seal of the Commonwealth, to permit the company to erect gates, for the purpose of collecting the tolls ; the amount of which, together with some other things connected with them, was provided for by the 12th section.
    On the 9th March, 1814, a supplement to this act was passed (Pam. L. 85,) by which the Governor was authorised to incorporate five companies for the purpose of making the different sections of the great road; by virtue of the 4th section of which, the plaintiffs in error were created a body politic and corporate, by the style and title of The President and Managers of the Chambersburg and Bedford Turnpike Road Company.”
    The act of the 11th Aprils 1799, sec. 24, (Purd. Dig. 106,) enacts, that when the inhabitants of any county shall be desirous to have a bridge erected or repaired on any public road, over any water, they shall apply by petition to the Judges of •the Court of Quarter Sessions of the proper county, stating the place and circumstances of the case, with the probable ex- ■ pense, and the said Court shall give said petition in charge to ■ the grand jury, who shall consider of the propriety of erecting or repairing the same; and if the Court and jury shall approve thereof, the Court shall make an' order on the commissioners, requiring them to cause the same to be erected or repaired in the manner prayed for, or in any other manner to be directed by the said Court and jury; and thereupon, the said commissioners shall, as soon as conveniently may be done, carry the said order into effect.
    The 21st section of the act of assembly passed April 6th, 1802, “ for laying out and keeping in repair the public roads and highways,” &c., (Purd. Dig. 593,) provides, that where a river, creek or rivulet, over which it is necessary to erect a bridge, crosses a public road or high-way, and the erecting of such bridge requires more expense than it is reasonable that one township or two adjoining townships should bear, itshall be the duty of the justices of the Court of Quarter Sessions, on the representation of the supervisor or supervisors, or oii the petition and at the request of a number of the inhabitants of the respective townships, to order a view, in the same manner as in the case of laying out roads and high-ways, and if on report of the said view it appears to the Court, grand jury, and commissioners, that such a bridge is necessary, and would be too expensive for the township or townships to erect, it is directed to be erected at the expense of the county, in the manner therein pointed out.
    The Court of Common Pleas being of opinion, that the iron in question was the property of the county of Franklin, and that therefore the plaintiffs were entitled to recover, the defendants removed the cause by writ of error. It was argued in this Court by Crawford, for the plaintiffs in error, and by Chambers, for the defendants in error, after which the opinion of the Court was delivered by
   Gibson J.

The question is affirmative: who had the right of property in the iron employed in constructing the bridge erected at the expense of the county ? for as between these parties, it is easy to determine in whom it was not. There is no pretence to say, the company succeeded to the rights of those who owned the materials of the old bridge, as a compensation for a new, and a better one, erected at its cost: it was bound to erect all necessary bridges and culverts, as incident to, and a part of the road it had engaged to make ; for which the toils it was authorised to exact were to be full compensation. Granting, however, for the sake of the argument, that the Legislature has power, to vest in a turnpike company, property, for which the Legislature itself may' adjust the compensation, by presuming that the advantage to the owner accruing from the road would be sufficient and just, still no provision to that effect exists in the present case ; and..the company could not, with or without compensation, assume the rights of any other person, unless by virtue of some law. Viewing this bridge as the property of the public, or under the controul of the State, (which it clearly never was,) it has not, in point of fact, been vested in the defendants. But to authorise the judgment below, it was necessary for the property to be, not only out of the defendants, but in the plaintiffs. The bridge, the materials of which form the subject of the present dispute, was erected by the county under the twenty-first section of the road law of the 6th of April, 1802 : but it is, notwithstanding that, said, not to be a county bridge, because the township, and not the county, was bound to repair; which shews, it is said, that it became for all purposes, the property of the township, and was at its disposal, as to repairs or alteration, in all respects as if it had been erected by the township itself. The latter, I acknowledge, is, in the first instance, bound to repair; but, I take it, that duty may ultimately be cast also on the county, where the resources of the township are inadequate. The twenty-fourth section of the act of the 11th of April, 1799, for raising and collecting county rates and levies, extends, as to repairing, to all bridges “ on any public road over any water,” whether such bridge were erected under the same section or under the road law of 1802, and its supplements. It would not follow, however, if the county were not bound to repair, that the property in the materials would be in the township; for neither the township nor the public have any thing but an easement. In a road or bridge dedicated to public use, the public have only a right of way, or the mere use of the thing, which is extinguished as soon as the road is vacated; and the right in the soil, over which the road was laid, or to the materials employed in constructing the bridge, respectively remain, as they continued all along, in the original owner or the persons who furnished them. A principle, stronger, but in every other respect analagous, obtains where lands are given to corporations; on the dissolution of which, such lands do not escheat, but go back to the donor and his heirs, on an implied condition annexed to the grant; for in that case, the property does in fact pass from the person devoting it to corporate uses ; but h~re nothing more than the use was parted with. If however, subsequent repairs by the township had added materials to the original stock, which could not be distinguished from it, there might have been great difficulty in deciding as to the relative proportions of the township and the county ; but here the iron sold by the company is specifically that which was paid for by the county, and none other. The laying out of the turnpike road was virtually a vacating of as much of the old road as was thus supplied ; and the right of way, which -the public had in such part, ceased, being exchanged for the easement gained in the turnpike. The interest of the public having thus ceased in the old bridge, there was nothing to prevent the county from resuming and disposing, at pleasure, of the materials of it; and the interference of the company was therefore tortious. This being the only question submitted in the case stated, the judgment is affirmed and the record remitted, to enable the Court below to execute the agreement of the parties as to the ascertaining of the amount to be recovered.

Judgment affirmed  