
    Commonwealth versus John Breed.
    An act of the legislature authorizing the building of a bridge over navigable water within the limits of the commonwealth, is not unconstitutional.
    The legislature are to determine when the public convenience and necessity require such an obstruction to navigation, and upon what terms and conditions it shall be allowed.
    If a private act of the legislature may be avoided on the ground that it was obtained through fraud, the question of fraud is to be determined by the jury; and if fraud does not necessarily result from the facts found by the jury, it will not be inferred by the court.
    Where the legislature authorized an individual to build a bridge over navigable water, with a draw not less than fifteen feet wide, it was held, that he was not bound to make the draw wider than fifteen feet, although vessels of a greater breadth had been accustomed to sail in such water, nor to make a wharf or pier to the draw, a wharf or pier not being an essential part of a draw.
    Where the charter imposes on the proprietors of a bridge a penalty for unreasonably neglecting to raise the draw, such neglect will not operate a forfeiture of the franchise.
    Information in the nature of a quo warranta, filed by the direction of the legislature, alleging that the respondent has erected and still maintains a bridge across a navigable arm of the sea between Chelsea and Belle Island, whereby the passing of vessels is obstructed, and requiring him to answer by what warrant he claims to keep up and maintain the bridge.
    The respondent pleads the St. 1816, c. 31, by which it is provided, that he may build a bridge convenient for the accommodation of the proprietors of Belle Island ; that it shall be built with a draw not less than fifteen feet wide ; that the proprietor of it shall, at all times when necessary, have the draw raised, at his own expense, for the convenient passing of vessels through the same, and in case any vessel shall be detained more than an hour, shall forfeit to the owner thereof a sum not less than three dollars, &c. ; and he avers a compliance with these conditions.
    The Solicitor General replies, that the statute granted the respondent the privilege of erecting a bridge for the private accommodation of passing and repassing to and from the island, the same being the private estate of the respondent, and that the grant was not for any public easement or convenience ; that it was the intent of the statute, that the draw should be of sufficient width to permit the convenient passing of all such vessels as had been accustomed to navigate the inlet before the erection of the bridge, and with such necessary piers as are usual in similar bridges, to aid in passing through the draw, and that the draw should be attended by proper persons at the expense of the respondent, so that it might be raised at all times to permit the passing of such vessels ; — and it is averred that the respondent has not complied with these terms.
    The respondent rejoins, that he has conformed to the several provisions of the statute, and thereupon issue is ioined.
    The jury find specially, that the bridge was built and has been continued by the respondent from Chelsea to Belle Island, which island is owned by him, and on which he has a dwellinghouse and farm ; that the water above the bridge is navigable for coasting vessels of one hundred tons burden, and before the building of the bridge, vessels occasionally passed to a landing place in Chelsea with wood for the use of the inhabitants of that town; that by virtue of the statute of 1816, the respondent built the bridge with a draw of the width of fifteen-feet one inch and a half in the narrowest part; that there is no wharf or pier near the draw ; that for the want of such convenience, and on account of the narrowness of the draw, vessels which have occasion to pass through the draw are impeded ; that no person has been stationed at the bridge to hoist the draw, but that usually the key or crank has been left there, by which the crews of vessels have been accustomed to raise it themselves ; that the key or crank was so left, on an understanding with the coasters that this would be more convenient to them than to seek some person to raise the draw ; that the draw is too narrow for the safe and convenient passage of such vessels as have occasion to navigate the inlet; that pursuant to a public notice upon the respondent’s petition to the legislature, for leave to erect the bridge, the selectmen of Chelsea attended to be heard before the members of the legislature to whom the petition had been committed, and that a hearing thereon was postponed on a remonstrance of the selectmen of Chelsea; that on the day appointed for a hearing, Breed, not being ready to go on, gave the committee from Chelsea to understand, that he would give them sufficient notice of his further proceeding, but that the inhabitants of Chelsea were never informed of any subsequent, appointment of time or place for a hearing, aud were ■ never heard on the merits of the petition, nor knew that Breed was proceeding before the legislature, until they were informed that the statute above mentioned was passed.
    
      March 20th
    
    
      March 26th
    
    The cause was argued by Davis (Sol. Gen.) and Sullivan, on the part of the commonwealth, and Prescott and Peabody, on the part of the respondent.
    
      Sullivan cited, in regard to the construction of statutes and legislative grants, and the effect of fraud in obtaining them, 14 Mass. R. 92 ; 1 Pick. 254 ; 12 Mass. R. 384; Bac. Abr. Statute, 15 ; Plowd. 205, 243, 366, 400 ; 4 Mass. R. 145 ; 2 Bl. Com. 346 et seq. ; 11 Co. 87 ; 3 Mass. R. 263; 5 Bac. Abr. Prerogative, F 2 ; 2 H. Bl. 475.
   Morton J.

delivered the opinion of the Court. The question which seems to be presented upon these pleadings, is, whether the defendant has complied with all the terms and conditions of his grant, or by a violation of them has forfeited his franchise. And this appears to be the question which the legislature by its resolve intended to have decided. But as a wider range has been taken in the investigation, and as the process has been attempted to be supported upon broader ground, it may be proper to consider the several questions which were raised and examined in the argument.

In the first place it is contended, that maintaining the bridge in question is a usurpation, because the act authorizing it is unconstitutional ana void. The verdict finds that the inlet over which the ondge is erected, is navigable, and that tne bridge prevents the passage of vessels of a certain description, which were accustomed to pass there before. And it is argued that this is a public highway which every citizen has a right to use without interruption or obstruction ; and that the legislature cannot take it away without adequate indemnity and except for purposes of public convenience and necessity. Const, pt. 2, c. 1, § 1, art. 4

The legislature has power to regulate and control by Ians ap pUjjiic highways and the navigable waters within the limits of the commonwealth. This power has been exercised from the commencement of our government without objection, and, in the use of it, bridges have been erected over many of the navigable rivers in the State. Every bridge, however much care may have been taken to provide suitable draws, has obstructed navigation in a greater or less degree. Although great solicitude has ever been manifested to prevent obstructions from being created in navigable waters, and great vigilance exercised in requiring bridges to be provided with suitable draws to facilitate the passage of vessels, yet, in some instances at least, the passage of vessels of a description which before had been accustomed to pass, has been entirely prevented. In all cases the legislature has the power to inquire when the public convenience and necessity demand these partial obstructions and interruptions to navigation, and upon what terms and conditions they may be established.

But it is said that this grant was made upon the petition and for the sole benefit of an individual, and was not needed for the accommodation of the public. It is doubtless true, that the leading motive of the defendant in erecting the bridge was private profit. And so almost all other enterprises, many of which have resulted in great public improvements, have originated in motives of private gain. It is also true, that others, as well as the proprietors, may have occasion to go upon the island. To such the bridge is an accommodation. Whether so many are thus accommodated that it may be said to be of common convenience, is a question which it was the province of the legislature to determine, and which may be presumed to have been correctly determined. We can therefore see no valid objection to the constitutionality of this grant.

It is further contended on the part of the commonwealth, that even if the legislature had power to pass such an act, yet that this is void, because it was obtained by the deception and fraud of the defendant. If a legislative act may be avoided for this cause, yet fraud is always a question of fact peculiarly within the province of a jury, and cannot be inferred by the Court. In this case the question was not directly submitted to the jury, and it does not necessarily result from the facts which were found by the verdict, that any fraud or deception was practised by the defendant in obtaining the grant from the legislature.

It is also contended in behalf of the commonwealth, that the defendant has forfeited his franchise, because he failed to comply with the terms and conditions of the grant. That this act, which is in restraint of preexisting public privileges, should receive a liberal construction, so far as that may be beneficial to the public, and that the words of a statute should be enlarged or restrained, according to the intent of the legis lature, when that intent may be discovered from a view of the whole statute, or even from a comparison of several statutes made in pari materia, is undoubtedly required by the just rules of interpretation. The legislature provide in the act, that the bridge shall be built with a draw not less than fifteen feet wide, in a convenient place for the passage of vessels ; and that the owner, at his own expense, shall have the draw raised whenever it may be necessary. Now it seems to us, that to require that the draw should be more than fifteen feet in width, or that the defendant should erect a wharf or pier at the draw, or keep a man constantly stationed on the bridge to raise the draw, would be to add new and independent conditions to the grant, rather than to give a construction to the existing provisions of the act. The constant attendance of a man at the draw is required of the proprietors of very few, if any, of the other bridges in the State. And that a wharf or pier is not an essential part of a draw or necessarily incident to it, is manifest from the consideration, that it is sometimes required and sometimes not, according to the situation of the bridge and the state of the water over which it is built.

From the above construction of the statute, compared with the facts found by the jury, it is manifest that the defendant has not been guilty of any such misuser of his franchise as will work its forfeiture. The penalty for any unnecessary delay m raising the draw, is fixed by the statute, and any neglect of this kind would subject the owner to this penalty, but would not operate as a forfeiture of the franchise.

Upon a careful examination of all the facts in the case and of the grounds relied upon in support of the information, we are of opinion that the grant to the defendant is constitutional and valid ; that he complied with all the terms and condemns of it; and that he has not forfeited the right thus acquired, by any misuser of it.  