
    Franklin & Columbia Turn. Co. vs. County Court of Maury.
    The county courts have no power to order the opening of a road intersecting a chartered turnpike road, so as to enable the wayfarer to evade the payment of toll. And if it make such order, and a road is opened, a court of chancery will order it to be closed as a violation of chartered rights.
    A road was established by the county court of Maury, leading from Columbia to the line of the county, in the direction of Franklin and Nashville. A road was also laid out by order of the court, which branched from the Columbia and Franklin road between two and three miles from the town of Columbia, and passed to the county line of Maury, by way of Bear creek, in the direction of Murfreesborough and Shelbyville. The legislature chartered a company to construct a turnpike road from Columbia to Franklin, which was built, and which occupied the bed of the county road, and a gate was established according to the charter, at the distance of two miles from the town of Columbia, between the town and the point at which the Columbia and Franklin turnpike reached the Murfrees-borough and Shelbyville road. After the establishment of this road, the inhabitants on the Bear creek road, in the county of Maury, petitioned the county court to open a road, which starting from Bear creek, should strike the turnpike at a point between the gate and the town, and this petition was granted, and the road was opened accordingly. The turnpike company did not appear and contest the opening of the road. This road enabled all those who came from Mur-freesborough and Shelbyville, and Bear creek to evade the payment of tolls.
    The company, thereupon, filed a bill in the chancery court at Columbia against the county court, setting forth the above facts, and insisting that the county court had no power to order the opening of said road, praying that it be closed, and enjoining the county court, and all persons from opening it again.
    The chairman of the county court answered the bill, to which there was a replication, and the following decree was entered, which exhibits the view taken by the chancellor of the facts and law of the case.
    “This cause having been argued at the September term 1846, before the Honorable Terry H. Cahal, Chancellor, upon the bill, answer, replication, proof, &c. And it appearing to the court, that said turnpike company was incorporated by the legislature of the State of Tennessee, on the 18th of Nov. 1831, for the purpose of enabling said company to make a McAdam-ized turnpike road from Franklin in said state, to the town of Columbia, in Maury county, Tennessee, and that said road was duly laid out, erected, inspected, approved and established according to law from Franklin to Columbia, and that toll gates were erected thereon according to law. It further appears that one of those toll gates is established on said road not within less than two miles of said town of Columbia and that said company was for a long time in the use, occupation and enjoyment of the same, and of the tolls received and charged at said gate, without any let or hinderance from any person; that when said road was completed and said gate erected, there was no road intersecting said turnpike, on either side of the same, between said gate and said town of Columbia. It further appearing that in the year 1842, near two years after said gate was erected, the said county court of Maury county by order of the same, caused a by-way or road to be opened and established so as to intersect said turnpike road between said gate and the town of Columbia and so as to intersect a public road leading from Columbia to Shelbyville and Mur-freesborough turnpike nearly opposite said gate, which road so leading from Columbia to Shelbyville and Murfreesborough intersects said turnpike road, as it appears to the court, a few yards from said gate and between said gate and said town of Columbia. It also appears to the court that said by-road was ordered to be laid out and established by the said county court and was laid out, opened and established by said county court with the view, and for the purpose of avoiding said toll gate, and to avoid the payment of toll at said gate, and to shun said gate, and to prevent persons travelling from Columbia to Franklin and other places, and from Franklin and other places to Columbia to shun, go round and avoid said gate, and to avoid the payment of tolls at said gate, and that said by-road was not laid out, opened and established for the convenience of the public any further than exonorating the public from the payment of toll may constitute such convenience.
    It further appearing that said by-road is not so good a road as said turnpike road, and is a longer road from the point where it intersects the said turnpike, to the point where it intersects said road leading from Columbia to Shelbyville and Murlreesborough, than the said turnpike from the point where the by-road intersects it to the point in the Shelbyville and Murfreesborough road where the by-road intersects it; and that the said turnpike road is much better and more convenient for the public than is the said by-road, and the court is of opinion that the right granted to said turnpike company to erect said turnpike road by the act incorporating said company is such a statutory franchise as this court has jurisdiction to protect, and that an injury done by a whole community is entitled to the same relief that it would be, if done by a single individual.
    The court is further of opinion, that although the county court of Maury county has the power and authority to lay off and establish any road in said county? which is for the convenience of the public; that it has no power to lay off and establish any road for the mere purpose of shunning said toll gate, and for the purpose of enabling travellers to avoid the payment of tolls at said gate, and which is not for the public convenience.
    And the said by-road being of this description and character, the court is of opinion, that the said county court had no right or power to lay off, and establish, or to order to be laid off and established the said by-road.
    It is therefore ordered, adjudged and decreed that the order establishing said road be, and is hereby declared void, and that said by-road be closed up, and the said county court and all others be enjoined and restrained from opening or using the same, and that the complainant be permitted to close up said by-road, so as to prevent all persons from travelling the same in such manner as to shun the said toll gate. It is further ordered that complainant pay the costs of this suit and that execution issue, from which decree the defendants pray an appeal to the supreme court at Nashville which is granted with security.”
    From this decree the county court appealed.
    
      M. 8. Frierson, for complainant.
    1st. The charter gives to this company, the exclusive right to demand and receive toll from persons who use the road, and of course the “law will protect them against any interference calculated to lessen their profits, and every such interference, whether it be by the creation of a rival franchise or otherwise, would be in violation or in fraud of the grant;” and the common law declares all such invasions of franchises to be nuisances. Then, do not the facts in this record clearly show, that this “shunpike” was opened by the county court of Maury, .for the fraudulent purpose of defeating this company of their customary tolls. 3d Kent, 458. Johns. Ch. Rep. 101, 111. 4th Humph. 315.
    2d. At common law, the party aggrieved had his remedy by an action on the case, for the violation of his right. And the question now is, can a court of equity “stay the injurious interference by injunction.” This is purely a question of authority, and we will simply refer the court to the authorities in support of the power of a court of equity to interfere in such cases by injunction. 3d Kent, 459. 5th J. 0. R. 101, 111. 1st J. 0. R. 615. 2d Mylne & Craig, 129, 130. 2d Story’s Eq. sec. 924, note 1. W. W. Story’s edition, sec. 927. 4th J, C. R. 48, 150, 1st Humph. 123. 7 New Hamp. 35.
    
      
      W. F. Cooper, for defendant.
    The defendants resist the relief prayed for in this bill, on the following grounds:
    1. Exclusive jurisdiction over the laying out of roads, is conferred by statute upon the county courts of the several counties. To them is given the power of adjudicating as a court, whether the public interest and convenience requires, that a particular road should be opened. It is the exercise, not of a mere right conferred upon the justices as a corporation, but of a judicial act. They appoint a jury of the county, who upon their oath decide upon the necessity and course of the road; parties interested have a right to come in and be heard; if aggrieved, they may appeal to a higher tribunal; in fine the justices, sitting as a court, perform a judicial act, from which the law gives an appeal. Can the chancery court review and reverse the decision of the county court, in a case over which that court has exclusive, original jurisdiction? If it can, does it not follow, that it possesses the same power in regard to any judicial act of the county court, nay, as to the judicial act of any court? It is insisted that the establishment of such a doctrine would lead to a conflict of authority among the different judicial tribunals, which would be subversive of all order and system.
    2. The company has a plain and unembarrassed remedy at law. The law provides in what way persons aggrieved may become parties to such proceedings. It is the duty of the court to decide upon the establishment of the road, taking into view the interest of the community, and the rights of individuals. If the complainants have a franchise, which gives them paramount rights over the whole world, the county court is bound to respect them; and if that court fails to perform its duty, the company has a right of appeal to a higher tribunal. The legal remedy is ample and effective.
    
      3. That private individuals, and corporations, public or private, have no right to interfere with the franchises granted by the state, is admitted. Wherever they do interfere, the court may take jurisdiction, either on the ground of ‘‘restraining irreparable mischief; of preventing oppressive and interminable litigation, or of doing away with the necessity.of a multiplicity of suits.” Every case, it is believed, which can be produced, where the chancery court has assumed jurisdiction in cases of franchise, will be found to be a case of this character. No case, it is insisted, can be found where the court has exercised. jurisdiction to review and reverse the judicial act of a •court, made within its powers, alleged to contravene the franchises of a charter. The courts of a state, whether acting according to the principles of the common law, or of equity, are bound to respect franchises granted by the legislature, and to protect them, and to adjudicate upon cases within their jurisdiction, with a view to such franchises, in the same way as they are bound to notice and protect the privileges and rights of individuals, whether founded on a bill of rights, on statutory enactments or on principles of common law. But if a court having jurisdiction of a subject matter, fails to respect the rights and privileges, either of an individual or a char - tered corporation, in the performance of a judicial act, and such individual or corporation fails to take advantage of the provisions of the law prescribing a method of protecting and enforcing his rights or privileges, surely a court of chancery •cannot assume jurisdiction to remedy his negligence.
    4. It is insisted that the laying off the by-road as shown in the pleadings and proof was made in the performance of a sound legal discretion, and was as a matter of fact fully authorized by the circumstances of the case and the wants of the community. An old road leading from Columbia to Mur-freesboro’ and Shelbyville, leaves the turnpike at a particular point; the community see fit to apply to the county court to alter the road, and the county court in the exercise of poAvers conferred on them, appoint a jury of view who bring in a verdict in favor of the proposed alteration, and the court sanctions the whole by the proper entry in their records. This alteration may, to a certain extent, injure either an individual or a corporation. No one has a right to complain except in the way pointed out by statute.
    5. If, however, we admit the jurisdiction of the court of chancery to enjoin the proceedings of the county court in laying off a road, in a case where the proof clearly showed an intention on the part of the court to interfere with the franchise of a corporation; it is insisted that the present bill cannot be sustained as this case now stands. The presumption of law would be in favor of the act of the court haying been done from a proper design, and according to law. Very clear proof ought to be required to overturn this presumption. The court must not be called upon to infer the improper motive from circumstances alone. It is contended, that the evidence in this cause is clearly insufficient to establish any such improper motive. The answer expressly denies that the court were actuated by any improper motives; and the proof does: not sustain the allegations in the bill.
    6. The grant of a franchise is always subject to the right and duty of the government to provide for the public interest;, and if that interest requires that other thoroughfares should be opened for the traveling public, it is the right as well as the duty of government to direct them to be opened. In Tennessee, the legislature has confided this right to, and imposed this duty upon the county court. These courts are the sole judges as to whether the interest of the community requires-the opening of new roads; and the exercise of the power in the case supposed, cannot infringe the franchise of a turnpike 
      company. That franchise is merely a right to take toll of all who may travel the road and pass through the gates. It does not constitute a property in the line of travel between given points. 11 Pet. 420. 6 Paige, 554.
    
      A. O. P. Nicholson, for complainant.
    1. The county court has jurisdiction to lay off public roads, to discontinue such as shall be found useless, and to alter existing roads. 1804, ch. 1, sec. 1, (Car. & Nich. 629.) And when any person shall conceive himself aggrieved by laying out a road he may have a jury to assess his damages against the county. (Car. & Nich. 631, sec. 19.) And by the act of 1827, ch. 50, (Car. & Nich. 95,) an appeal is given to the circuit court. It follows, that by these acts the county court was invested with exclusive original jurisdiction in regard to laying out, altering or discontinuing public roads, and consequently that an order of that court could not be reviewed or reversed by the chancery court.
    2. But by the act of 1835, and others there adopted, a charter was granted by the state to the complainants to lay off and construct a turnpike from Franklin to Columbia, and upon the completion of said road, certain privileges and franchises attached to them which they had a right to enjoy and to have protected. They purchased from the state the right to use the road so constructed as a thoroughfare, and, in consideration of the money and labor expended on it, to erect gates and receive tolls — and as a necessary incident to this franchise, the state became bound to protect them against violations of its enjoyment through her judicial tribunals: 1 J. C. 615, 5 J. C. 101.
    It follows, that so far as the franchises of the complainant and their necessary incidents extend, they operate as a limitation of the jurisdiction of the county courts. So that the county court of Maury is now restricted in laying out public roads to such orders as will not result in a violation of the franchises granted to complainants, and, an order which is in violation of their rights is as much a fraud on the grant as if the same violation took place by individuals without such order.
    And, that whilst the county court has exclusive original jurisdiction in laying off roads and discontinuing them “when found useless,” yet, that the chancery court has jurisdiction to protect the complainants in the enjoyment of their franchises, and therefore, to prevent or discontinue such roads as violate their rights. 14 Eng. Cond. Ch. 123, Attorney General Vs. Forbes.
    
    3. When application is made to the county court for authority to lay out a public road, they are bound to be governed by the public wants, having regard however to private interests ■and corporate franchises — but their orders are not conclusive ■ — for by sec. 19 they are required to redress injuries to individual interests by compensation in damages. But this remedy has no application to injury done to a corporate franchise. The order therefore, is no more than •prima facie evidence that the road is needed for public convenience, but is not conclusive •either as to the rights of individuals or corporations, and more especially, when the party injured had no day in court to contest the making of the order.
    4. If complainants had any remedy at law by application to the county court, it was an uncertain, imperfect and ineffectual remedy. All that the county court could do was either to order the by-road to be discontinued as a public road if found useless, but this would not shut up the road and terminate the injury — -or to order a jury and assess the damages bat this would leave the road open and the injury unredress-ed. (Act of 1804, ch. 1, sec. 1 and 19.) The complainants can only have complete remedy in chancery.
    
      5. The facts in the record show that the order was procured and granted for the purpose of interfering with the franchises of complainants, and was therefore, fraudulent in all the defendants, and ought therefore to be annulled by the chancellor, with an account of the injury.
   Turley J.

delivered the opinion of the court.

This bill is filed by the Franklin and Columbia Turnpike Company against the County Court of Maury, to have a road opened by order of the court, turning the first toll gate, on the turnpike from Columbia and Franklin, closed, and to enjoin the re-opening of it.

The facts of the case are, that the Franklin and Columbia Company was legally incorporated by the legislature of the State of Tennessee, for the purpose of building a turnpike road from the town of Franklin, in the county of Williamson, to the town of Columbia, in the county of Maury, with certain franchises, among which was that of erecting a-certain number of toll gates for the reception of toll from travelers thereon.

Under this charter, stock was taken by divers individuals and the state, in an amount sufficient to construct the road, which was done, and toll gates established thereon, at the different intervals, prescribed by the statute of incorporation. Among which was one in two miles of Columbia, at which the company was receiving toll under its charter. Subsequently the county court of Maury laid out and established a public road for the county, which leaves the turnpike road between the town of Columbia and the gate, a short distance from the gate, which it turns, by leaving it to the left, and in a short distance thereafter re-enters the turnpike road. That this road was established for the purpose of avoiding the gate, and the consequent payment of toll, there can be no doubt — in fact it is not controverted in the argument — for the turnpike road is also a public road, and a nearer and a better one than that established by the county court. The establishment of this road by the county court of Maury, has greatly lessened the amount of toll received by the company at the gate, and if it be permitted to remain, will permanently impair the rights of the company in the enjoyment of that portion of the franchise secured to it by its charter.

Under this state of facts, the question presented for consideration is, whether the complainant is entitled to the relief asked by the bill?

The creation of good pitblic roads is a matter of great importance, both to the public and to private individuals; and as such, has been greatly encouraged by the state, both by granting charters incorporating companies for that purpose, and by taking stock in them. The creation of these roads is necessarily very expensive, both from the manner of construction and from the damages paid to those over whose lands they are extended ; and the only remuneration allowed for these expenditures, is the amount received from wayfarers in toll at the gates erected by law for that purpose. If the different companies may be deprived of these tolls, by other roads made for no other purpose but to turn the gates and avoid thereby the payment of them, it will necessarily follow that the individuals who have appropriated their money for the erection of such roads, may, after they have been built, be entirely prevented from receiving any recompense whatever for such outlay, although the same be guarantied to them expressly by charter ; for if one gate may be so turned, every one may be, vrith equal propriety. This would be a virtual destruction of the chai'ter, for in as much as the company does not own the land through which the road runs, the gates may be turned at any place they may locate them. There is no principle better settled, than that an act of incorporation is a contract on the part of the state with the corporators, and that no law can be subsequently passed by which it is impaired.

The substance of the contract between the legislature and the Franklin and Columbia Turnpike Company, is the right of the company, upon the building of the road, to erect gates at the specified distances for the reception of the tolls allowed by the charter.

The legislature then could do nothing to impair this right, by which it is not meant, that other public roads may not be chartered for public convenience; a necessary but indirect consequence of which may be a diminution of toll on the road by a diminution of the travel; but that no such charter eould be granted, the only object and end of which would be to evade the payment of the tolls for travel on the road by avoiding the gates, because it would be a violation of public faith, and would impair the obligation of the contract between the state and the corporation. If the legislature of the state could not do this, to permit it to be done, by individuals, or by a county court, would be to permit that to be done by an inferior power, which cannot be done by the sovereign.

That the turning of the gate in controversy, by the order of the county court of Maury, is an abuse of power, is not seriously controverted. But it is argued, that the court has exclusive jurisdiction over the subject of the laying out and establishing roads in the county of Maury, and that no other tribunal has authority to revise or control this exercise of power, but in the manner prescribed by law, viz, by appeal or certio-rari. The power to open roads is a prerogative of sovereignty; it has been delegated by the legislature to the county courts in this state, and is exercised by them, notas a judicial, but municipal function.

It is not to be controverted, that they are the proper judges of what the public convenience requires; in the laying off and establishing of roads for the public convenience; and, that ordinarily the only redress for those who conceive themselves agrieved by the establishment of a road, is by appeal or certio-rari, to a revising tribunal. But this is unquestionably in cases where the establishment of the road may be considered of doubtful policy, and an individual who may feel himself agrieved thereby, may wish to contest it; in such case the establishment of the road being a lawful act, by a lawful tribunal, the only mode of redress is through the revising tribunal appointed by statute, viz: the circuit court, and in the mode prescribed by law. ,

But in the case under consideration, the establishment of the road is not a mere act of indiscretion, but one in violation of a right secured to the complainant by charter, for which an individual, if guilty of it, would be hable in damages, by an action on the case on the part of the corporation — it being looked upon in the eye of the law, as a nuisance upon its rights — and we are by no means sure, that such an action would not lie against the county court. Indeed, we are inclined to think it would.

It is very possible, that in this case, the company, if it had had knowledge that the road was about to be laid off, might have made itself a party to the proceeding, and have moved the case by appeal to the circuit court; but this it was not bound to do.

The right to redress is based upon higher grounds. The act of the county court, establishing this road, was an unlawful act; it constitutes an illegal obstruction in the way of the enjoyment of franchises secured to the company by contract with the state; and the chancery court has power innate to reverse it; if it had not, irremedial mischief to the company would be the consequence.

No relief can be had against the individuals over whose land the road runs, either by suit or injunction, for the road is not established by their acts, but by the act of a power superior to them; if sued, they might defend themselves under it; if a bill be filed against them, to close the road, they might well answer, that they did not open it, and have no power to close it; and they could not be held in contempt for not doing it.

If, then, there be no remedy in chancery against the county court, not only this gate, but every one on the road may be virtually closed forever.

This is too great an absurdity to be thought of.

Mr. Story in sec. 925, of his work upon equity jurisprudence, says, “In regard to private nuisances, the interference of courts of chancery by way of injunction, is undoubtedly founded upon the ground of restraining irreparable mischief; or of suppressing oppressive and interminable litigation, or preventing multiplicity of suits.”

In sec. 926, he gives examples of such nuisances, “as where loss of health, loss of trade, destruction of the means of subsistence, a permanent ruin to property, may, or will ensue from such wrongful act; as if a party builds so near the house of another party as to darken his windows, against, the clear right of'the latter, a court of equity will interfere by injunction to prevent the nuisance, as well as to remedy it, if already done; for the injury is material, and operates daily to destroy or diminish the comfort and use of the neighboring house; and the remedy by multiplicity of actions for the continuance of it would furnish no substantial compensation.”

In sec. 927, he further says: “Cases of a nature calling for a like remedial interposition- of courts of equity, are the obstructions of water courses, the diversion of streams from mills, &c. So, in like manner, an injunction will be granted in favor of a turnpike corporation to secure the due enjoyment of their privileges, by preventing the establishment of short byroads (commonly called shunpikes) to destroy their tolls.” In the case of The Croton Turnpike Company vs. Ryder, 1st John. Ch. Rep. 611, it is held by chancellor Kent, “that an injunc-lion will be granted, to secure to a party the enjoyment of a privilege conferred by statute, of which he is in the actual possession, and when his legal title is not put in doubt. And that where a turnpike company, incorporated with the exclusive privilege of erecting toll gates and receiving tolls, had duly opened and established the road, with gates, &c., and certain persons, with the view to avoid the payment of toll opened a by-road near the turnpike, and kept it open at their expense, for the use of the public, by which travelers were enabled to avoid passing through the gate and paying toll to the plaintiffs, a perpetual injunction would be granted to prevent the defendants from using, or allowing others to use such road, and the same, be ordered to be shut up.”

So, also, in the case of The Newburgh Turnpike Company vs. Miller, 5th John. Ch. Rep., it was held, after a most elaborate investigation, by the same great judge, “that where one has a grant of a ferry, bridge, or road, with the exclusive right of taldng toll, the erection of another ferry, bridge, or road, so near it, as to create a competition injurious to such franchise, is a nuisance and the court will prevent the use of the rival establishment.” It makes no difference, that these cases . are against individuals; they establish the principle, that a chartered right shall not be permanently injured by a private nuisance ; and it can be of little import whether this nuisance be by the act of an individual, or by a municipal power; the act creating it is alike illegal in the one case as the other, and will alike be relieved against.

But if a case in point upon this branch of the subject be needed, we have it in that of The Attorney General vs. Forbes, 2d Milne & Craig, 123, in which an inquisition was granted by the lord chancellor Cottenham on information and bill, upon the ground of public nuisance, to restrain the magistrates of a county from cutting the timber supporting the roadway of a bridge, which timbers and roadway, at the place proposed to be cut, were within their jurisdiction, but of which the other extremity was within a different county. The chancellor, in delivering his judgment, says: “with respect to the question of jurisdiction, it was broadly asserted, that an application to this court, to prevent a nuisance to a public road, was-never heard of. A little research, however, would have found many such instances. Many cases might have been produced, in which the court has interfered to prevent nuisances to public rivers and public harbors. And the court of exchequer, as well as this court acting as a court of equity, has a well established jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbors and public roads. In Box vs. Allen, this court interfered, to stay the proceedings of parties, whose jurisdiction is quite as high, as that of the court of quarter sessions, over bridges, namely, the commissioners of sewers. Those commissioners possess a jurisdiction founded on acts of parliament, and they have a right, within the due limits of their authority, to do all acts necessary to their functions; nevertheless, if they so execute, what they conceive to be their duty, as to create a nuisance, this court has the undoubted right to interpose. And that this jurisdiction is exercised, not for the purpose of overruling the power of others, by way of appeal from their authority, but for the purpose of exercising a salutary control over all, for the protection of the public.”

Upon the whole view, then, of this subject, we are clearly of opinion that the complainant is entitled to have the road in controversy closed, and to a perpetual injunction against re-opening it, and do decree accordingly.  