
    Case 16 — Action to Enjoin Turnpike Co., prom Erecting Toll House and Gate, and prom Collecting Tolls prom Plaintiff—
    Feb. 27.
    President, &c. of Louisville & T. Turnpike Road Co. v. Anderson.
    APPEAL from: spencer circuit court.
    Judgment for Plaintiff and Defendants Appeal.
    Affirmed.
    Turnpike Roads- — Erection of Toll Gate Within Prohibited Distance of Town — Injunction.
    Held: Where a turnpike-road company proposes, in violation of its charter, to erect a tollgate within one mile of a town, one who lives on the road within a mile of the town, and outside the proposed gate, is entitled to an injunction restraining the company from erecting the gate and from collecting tolls from her.
    G. G. GILBERT and PRYOR, O’NEAL & PRYOR, for appellants,
    (No brief for appellant.)
    P. J. FORES and J. W. REASER, for appellee.
    1 Appellant’s charter prohibits the erection -of a toll-gate within one mile of Taylorsville. This is manifest from the charter itself, hut if there is any doubt of this, it is removed by the con- ‘ temporaneous .construction placed upon this charter by appellant, its officers and stockholders.
    2. The location of -a toll-gate at a point prohibited by its charter is a nuisance, and any one living within the prohibited territory may enjoin same. Woodward -v. Commonwealth, 9 Ky. Law Rep.; Cohn v. Virginia, 6 Wheat., 418; Harris v. Com., 83 Ky'., 162; Bardstown & G. R. T. R. Co. v. Talbott, &c., 11 Ky. Law Rep., 329; Louisville & T. T. P. Co. v. Bass, 19 Ky. Law Rep., 1954.
   Opinion of the court by

CHIEF JUSTICE PAYNTER

Affirming..

The appellant has a toll house and gate on its road near Taylorsville, where it has been for more than forty years.. It proposed to erect a toll house and gate within a less distance than one mile of that town. The appellee lived- on its road, within a mile of Taylorsville; and, upon a claim that it was in violation of its charter rights to erect a toll house and gate within less than a mile of that town, and to do which would create a public nuisance, and also damage her specially, she enjoined it from erecting the toll house and gate. Upon the trial of the question the court adjudged that it did not have the right to erect the toll house and gate at the place mentioned, or to collect tolls from her. This court, in the case of Turnpike Road Co. v. Boss, 44 S. W., 981, ruled that, under the charter of appellant, it had no right to erect a toll house and gate within one mile of a town on its road, although the Legislature had, by amendment to the charter, endeavored to confer such a right upon it. Without going into the question as to the authority of the Legislature, by an amendment to the charter, to have conferred the right upon appellant to erect a toll house and gate within the originally prohibited distance, and without expressing an opinion as to the correctness of the opinion of the court in the case referred to on that question, it is sufficient to say that no amendment to'the charter is relied upon as conferring the right to erect the toll house and gate within a mile of Taylorsville. It appears that, under the original charter of appellant, — and it was1 so decided in the Boss Case, — it had no right to place a toll house and gate on the road within less than a mile of the towns along the road. It was also decided in that case that a party living on the road, and within a smile of the town, was entitled to an injunction restraining the company from collecting of him tolls. So the question involved in this case was adjudicated in that case. Therefore it is unnecessary to extend this opinion for the purpose 'of giving further reasons for holding that appellant did not have the right to erect the toll house and gate as contemplated by it. The judgment is affirmed.  