
    Breckbill versus Turnpike Company
    THIS was an action of Indebitatus -djfumpfit. The caufe was tried at Lancajier, and the J ury found a fpecial ver-ditt in the following terms:
    “ The Jury find, that B. Breckbill, the Plaintiff, was feized in his demefne as of fee in 216 acres of land, &c.
    “ That the Prefident, Managers &c. (the Defendants) by and- with their fuperintendants, furveyors, engineers, artifts and chain bearers, workmen and labourers, with their tools &c. entered in and upon the faid trail of land, and laid out a road in through and over the fame, 50 feet wide, and about 150 perches,in length, and caufed 21 feet thereof to be bedded with pounded ftone, well compacted together, a fufficient depth to fectire á folid foundation to the fame, and an even furface thereon, being the Turnpike road, agreeably to the act, &c. \
    “ That no exprefs contradi, or agreement, refpediing tbs faid entry, or any promife, or engagement, to make compen--fation for fuch entry, and for the land fo taken and occupied' by the faid road, was made by, or ever exiiled between, the faid Plaintiff, and the faid Prefident, Managers, &c. (the Defendants)
    “ That all the roads heretofore laid out, or at prefent being in, upon, over or through the faid trait of 216 acres of land, or any part thereof, including the faid road fo laid and made by the Prefident, Managers &c. do not occupy, take,up, or ■ walle 6 acres in every hundred of the faid trait.
    “ But whether on the whole matter, by the Jurors afore-faid, in form aforefaid, found, the faid Plaintiff ought to recover his judgment and damages againft the faid Prefident, Managers &c. the Jurors aforefaid,' are entirely ignorant, and thereon pray the advice of the Judges of the Supreme Court.
    “ And if upon the whole matter aforefaid, by the Jurors aforefaid, in form aforefaid,. found, it (hall appear to the Judges of the Supreme Court, fitting in Bank, that the faid Plaintiff is entitled to recover agairff the faid Prefident and Managers &c. then they find foe the Plaintiff, and affefs damages to the. faid Plaintiff in the fum of fix hundred dollars—befides his cofts and charges by him about his fuit in this behalf expended, and for thofe cofts and charges, 6d.
    “ But if upon the whole matter aforefaid, by' the Jurors aforefai.d, found, it fhall appear to the faid Judges, that the faid Plaintiff is not entitled in point of law to recover againft the faid Prefident, Managers, &c. then the faid Jurors aforefaid, on their oathsj &c. do fay, that they find for the Defendant.”
    Three queftions arofe on this fpecial verdiil: jft. What is the nature and operation of the proprietary grants of land, with an allowance of 6 per cent for roads, &c. ? Is the power veiled in the Turnpike company, to enter upon; take, and poffefs lands, confiftent with 1’uch original grants, and the Conftitution, unlefs comp'enfation is made ? And can an a ¿lion of Indebita-tus -affumpfit, upon an implied promife, be maintained againfc a corporation ?
    For the Plaintiff, it was contended, ift. That whenever lands were granted by patent,, the allowance of fix per cent paffed as abfolutely as the reft of the trail, to the grantee, the whole being alike fubjeil to the eafement for roads. A mere right of paifagej therefore, was all that remained with the Government. It remained too for public ufe,, and could not be transferred by the Government fo an individual occupant for private purpofes. The Government might claim' it, and might enjoy it forever; but until it was claimed for the public, and whenever it ihould ceafe to be enjoyed by the public, the freehold and occupancy of the grantee were perfeii and.exclufive, r Burr. 143. 146. This being the original nature of the con-tradi, neither party can ever enlarge, abridge, or impair its operation; and, as on the one hand, the grantee- could never detiy the right of paffage to the public; fo, on the other hand, the public could never convey more than a right of paffage to any body politic or corporate.
    2d. But the a£t of Affembly does grant to the Turnpike company, more than the public right of paffage, 3 Vol. 248. Dali. edit. It gives them, in effeil, the fee, and extinguijhes the grantee’s right of occupancy, which could only be fufpended, on the principles of the original grant, when, and fo long, as the public ihould ufe the premifes as a road. Again: it changes, the charaite'r of the contradi, which was, limply, formed, between the grantor and the grantee, by introducing a third party, without the grantee’s confent. And, finally, what was by" the original contradi a public refervation, is made an inftrument of pri/ate emolument; fo that the benefit of paflage, which then was contemplated as a matter of common right, js now only to be enjoyed by thofe who will and can pay for it. But the Conflitution fays, that no man’s property fhall be taken, or applied to public ufe, without juft compenfation. If, therefore, even a public benefit is intended by the transfer of the rights of the grantee, together with the rights of the Government, to the Turnpike company, it can only be done upon the condition of an adequate indemnity. 2 Dali. Rep. 310. The aft of incorporation impowers the company to purchafe, take, and hold, in fee fimple, all fnch lands, &c.as fhall be necefFary to them in the profecution of their works, not-merely the lands over which the road aftually runs : And, in every fimilar in-ftance of a canal, the Legiflature has exprefsly impofed the ob-lig.*.t.i'on of paying for whatever lands were appropriated to the work. State Laws, Dali. edit. 3 Vol. 136, 275. 362. 4 Vol. p. 251. The uniform principles of juftice, as well as" the pofi-tive provifion of the conftitut-ion, are as ftrong to entitle the Plaintiff to an equivalent for his property, as an aft of the Le-giflature.
    3. The Plaintiff is entitled to recover in the prefent form of a ¿lion. Indebitatus_ ajfumpftt is- an extenfive and equitable remedy, and ought to be applied whenever an obligation is faffed upon moral principles, or natural juftice. The authority given to the Turnpike company, to take private property for their ufe, accepted and exercifed by them, creates a moral obligation to pay a rcafonable equivalent to the individuals, whofe property is fo taken ¿ and the Plaintiff, by bringing this aftion, waves the tort, on which he might, otherwife, have relied. A corporation aft certainly, under the fame moral obligations as an individual; and to decide, that they are never liable upon an implied promife, would work infinite mifehief and injuitice; fince they could not be made refponfible for the .perfonal tref-paffes of their fervants ; and it is impoflible to compel a contrail with the folemnity of the corporate feal. The power of the Legiflature itfelf, did not extend further, than to grant the property, on condition that it was paid for ; and, if it is not paid for, the law is unconflitutjonal and void. But the law is the caufe of aition; and the' company’s acceptance of the law, forms on their part the contraft, or ajfumpftt, to pay the value ofthe'land.
    .For the Defendants, it was contended—ill. That as far as the •6 per cent, allowance for roads, the grantees of land were mere truftees for the public. It is immaterial on what principles roads were originally laid out in England; though, at prefent, it is known, that they can only be laid out by private grants, or’by s<Ss of Parliament, with a claufe for making compenfation. It ,has, hoyvever, been at all times the policy of Pennfylvania, that the government lhould be at the
    
      expence of eftabliíhing the public roads and highways. The very firft article of the conditions and conceffions agreed unon between William Penn, and the original adventurers, contains, a provifion that the public roads lhould be laid out at the .proprietary’s charge; I Vol, p. 6. Appendix Dali. Edit, but as it, alfo, contemplated the eltabliihment of cities and towns, to which the' roads ftould lead, a fupplementary provifion became neceflary, to correfpond better with the unimproved ftate of the country, and the allowance of 6 per cent, was made by the proprietary, I Vol. .37, 39. in Appendix Dali. Edit. For this additional quantity of land, the grantee never paid any price, nor rent-: It was not even fubject to taxation. Thefe fails cannot be otherwife accounted for, than by the admiffion of another fait, that, although the poffeffion was transferred, the government referved the right to refume it at will, and without paying a compenfation. The early laws of the Province bear the fame inflexible afpeit. There was no provifion made for. compenfating any damages in eftabliíhing a highway, or public road; and with. refpe£t to private roads leading into the highway, provifion was only made for compenfating the damages done to improved land, 1 Vol. 16, 289, 290. 'Dali, Edit. It is, likewife, a circumftance greatly corroborative of this conftrudtion (though it has been differently uftd) that in the cafe of canals, for which no property had been defignated or referved in the public grants, the late laws contain an exprefs claufe, for making compenfation to the .owners of lands taken for public ufe; though fuch claufes are neyer inferted in any laws for eftabliíhing public roads, or highways,
    2. If, then, the right of foil remained in the public, the government might either layout the road itfelf, or it might con-tradi with others to do it; and no ftipulation of the original grant, nor any provifion of the Conftitution, can fairly befaid tobe violated. Nothing more is transferred to the-Turnpike Company, than the public previoufly pofl’eiled, the right of eftabliíhing a permanent road; and the right of paflagp remains a common right, notwithftanding the toll; for, that is only a beneficial fpecies of taxation, which'.relieves the. townihips from the expence of repairs, and charges it upon thofe who immediately enjoy the benefit of the road. 1 Bl, C. 357.
    3. But, at all events, the prefent a&ion cannot be maintained: The idea of an exprefs aontradl with the Turnpike Company, is repelled by the finding of the fpecial verdidt; and an implied ajfumpftt cannot be maintained; for, a corporation can only contrail by deed under the corporate feal. t Bl. Com. 475. 6 .Vin,. Abr. 268- 3 Salk. J03. 6 Pin. Abr. 292. 287,8. Kyd 
      
      on Corporations, x Vol. 449, 450, 2-59, 2.68. Indeed, the court could not infer an implied pro.rufe from the fails-dated; as the affumption, whether exprefs, or implied, muft be found by the jury; and the proper remedy, if the Plaintiff had fuffered any injury, was an action of trefpafs againft the agreffors.’
    
      E. Tilghman and Hopkins, for the Plaintiff.
    
      Lewisj Ingerfoll, M-Kean and C. Smithy for the Defendants.
   The Court,

on the day fucceeding the argument, delivered an unanimous opinion, that on this fpecial verdiil, the' Plaintiff could not recover, in the prefent form of aition, a-gainft the Defendants, as a corporation: And, therefore, they deemed it unneceffary to decide the other queftions in the' caufe. •

Judgment for the Defendants.  