
    M'Clenachan against Curwen.
    
    Philadelphia, Saturday, March 26.
    The Commonstftutionairightto authorize a turnpike company to lay out a road *teground of1" th<r cltlz?n> pensation for
    TRESPASS quare clausum fregit. The following case was stated for the opinion of the Court, and agreed to be considered in the nature of a special verdict. r
    ■ Under the act of assembly, passed the 9th April 1792, entitled “ An act to enable the governor of the Common-u wealth to' incorporate a company for making an artificial “ road from the city of Philadelphia to Lancaster,” a company was incorporated by the name stile and title of “ The “ President, Managers and Company of the Philadelphia “ Lancaster Turnpike Road,” for the purpose of making an artificial road from the city of Philadelphia to the bórough of Lancaster, which road was under the authority of that law, laid out by the said Company, over the cleared, tilled and enclosed lands of the plaintiff-, situated in Chester county, and was afterwards made and completed in such manner as in the said act is mentioned.
    Afterwards, to wit, on the 1st day of August 1794, the defendant, then being superintendant for the said Company, and acting by their commands, entered on the aforesaid land of the plaintiff, along the route or tract so laid out for the said road; and for-the length of 100 perches, and in breadth SO feet, ©ver and along the said route or tract, dug up the cleared and enclosed land of the plaintiff, and overlaid the same with stones and gravel for the said road, and also then and there threw dozen the enclosure of fence of the said plaintiff, over and across the said route or tract.
    No appraisement of the land so overlaid, nor'of the damages done by throwing down the said inclosure, has ever been made, nor has any money ever been paid or tendered to the said plaintiff for the same, nor was his permission ever obtained for the entry upon, or overlaying the said route or tract, or breaking down his said inclosure.
    On the 11th July 1681, William, Penn, the first proprietor of Pennsylvania, made and executed a certain instrument in writing, entitled “ Certain conditions or concessions “ agreed upon by William Penn proprietary and governor “ of the province of Pennsylvania, and those who are the M adventurers and purchasers in the same province.” (Prout the same instrument) 
      .
    
    No such great roads or highways, as in the said written instrument are mentioned, were first laid out and declared to be for highways, before the dividend of acres was laid out for the purchasers; but in lieu thereof, and with the assent of the said William Penn and the adventurers and purchasers, an allowance for such roads and highways of six acres for every hundred acres, over and beyond the said quantity of every hundred acres, was from the first settlement of Pennsylvania made by the said William Penn, in all his grants of lands in Pennsylvania, for which said allowance no price or sum of money was ever charged or paid; and a like allowance for the like purpose hath ever since been made by the successors of the said William Penn, and by the state of Pennsylvania.
    
    It is agreed, that all acts of assembly of Pennsylvania, whether now in force or not, that either party may think material, shall be considered as a part of this case.
    
      Tf upon these facts, the law shall 1® with the plaintiff, judgment shall be rendered for him, and a writ of inquiry of damages awarded for him; but if the law shall be with the defendant, then the judgment shall be rendered for him.
    T. RÓSS pro quer.
    
    W. LEWIS pro deft.
    
    
      
       This case is inserted at the request of the Chief Justice, from a report in his possession. It is of obvious importance, not merely from its containing some valuable facts connected with the early history of Pennsylvania, but from its set" fling a much litigated point of constitutional law.
    
    
      
       The only material section of the concessions, is the first, which is in the following terms:
      “ Thai so soon as it pleasetli God that the ahovesaid persons (the proprietary <£ and adventurers and purchasers in the province) airó there, a certain quantity £c of land or ground plot shall be laid out for a large town or city, in the most ££ convenient place upon the river for health and navigation, and every purchaser “ and adventurer shall fay lot, have so much land therein, as will answer to the c £ proportion which he hath bought"or taken up upon rent; but it is to he noted, ££ that the surveyors shall consider what roads or highways will be necessary to “ the cities, towns, or through the lands. Great roads from city to city, not to con- “ tain less that forty feet in breadth, shall be first laid out, and declared to be “for highways, before the dividend of acres be laid out for the purchaser; and ££ the like observation to be had ior the streets in the towns and cities, that there ££ may he convenient roads and streets preserved, not to he encroached upon by “ any planter or builder, that none may build irregularly to the damage of ano_ “ ther. In this custom governs.”
    
   Shippen C. J.

now delivered the opinion of the Court; but Teatés J. being a stockholder of the company, took no part iff the decision. '

This is an action of trespass brought against the superintendant of the artificial road, - leading from^Philadelphia to Lancaster, palled the Turnpike Road, for. entering upon the cleared, tilled and enclosed lands of the plaintiff, situate in the county of Chester, and digging up the said land for a certain distance, and overlaying the same along the route or tract of the said road with stone and gravel, and for throwing down the inclosure of fence of the plaintiff over and across the said route or tract, without having made any compensation for said 'land, and for the-injury done to his improvements.

The question turns partly upon 'the validity, and partly on the true construction, of the act of assembly of- the 9th April 1792, impowering the Turnpike Company to make this artificial road.

The validity of the act is impeached by its being repugnant to the' constitution of Pennsylvania, which directs that no man’s property shall be taken for public use, without his own consent or that of his legal representatives, nor without compensation.

To this it is answered, that the road or trfict of the road, running through the plaintiff’s land, was not his separate property, for that he held it as a trustee for the public, under the grant of the proprietaries of Pennsylvania, in which he was allowed beyond the quantity of land actually purchased and paid for, six per cent/ for roads- and highways.

This will lead us to consider the different kinds of lawful roads and highways in Pennsylvania. There are and have been for a great length of time, three different kinds of roads. 1st'. The great provincial roads, called in the act of 1700, the cc king’s highways” or “ public roads,” which were laid out by order of the governor and council. 2d. The roads or cartways leading to such great provincial roads, laid out by order of the justices of the county courts, after a return of certain viewers, that the same was necessary for the convenience of the public. Such parts of these roads as run through any man’s improved ground,, were to be paid for out of the county stock. The third kind were called private roads, likewise laid out by order of the county court, on the' application of any persons for a road to' be laid out from, or to their plantations or dwelling places, to or from the-highways. The improved grounds through which these roads were run, were directed to be paid for by those, at whose request and for whose use the same were laid out.

As to the first of these roads, called in the act the king’s highways or public roads, they were one of the objects of what is called concessions made by the first proprietor, William Penn, to those original purchasers in England, by whose assistance he expected to found the colony. By this instrument dated 11th July 1681, it was agreed that when the adventurers should arrive here, a certain quantity of land, or ground-plat, should be laid out for a large town or city, upon the river Delaware; that every purchaser should by lot have so much land therein as would answer to the proportion which he had bought in the country. But previously to laying the dividends for each purchaser, it was directed, that the surveyor should lay out the great roads from city to city, or to great towns, as well as the streets in the great towns or cities. The grounds to be occupied by these great roads and streets, were evidently to be out of the proprietor’s lands alone. On the arrival of the adventurers in this country, it was found very practicable to lay out streets in one great city, which was accordingly done; but quite impracticable to lay out the great roads or highways from city to city, as only one city was then contemplated. But as such great roads were to be laid out over the land of the proprietor alone, and the purchasers were not to contribute, it was at length agreed and sanctioned by the .early laws of the province, that in lieu of the impracticable plan settled in England, there should be an additional quantity of land granted to each purchaser without price or rent, to enable him to contribute without loss to such public roads as should'thereafter be found necessary for the use of the inhabitants. In this plan there was evidently a chance that the purchaser might be either a gainer"or loser in the event, as it was then, and would probably continue for a long time, uncertain, how much of each man’s land would be found necessary for such public roads. The quantity of six'per cent. was however fixed as the permanent quantity to be added to every man’s land for that purpose; and from that early period to the present time, no grant has been made either by the proprietaries or commonwealth, without this addition of six per cent., expressly for. the purpose of contributing to the establishing the roads or highways. It is true, it is not for these great roads alone, that they are to contribute, as but few of them are necessary; but as by the law of 1700, although a compensation is directed to be made for the improved land of any person, through which the second species of roads or cartways are run, yet as to the woodland or unimproved ground, there is no compensation to be made, evidently contemplating their liability to contribute on account of the additional six per cent, granted them to supply the roads and highways;' — although in this early arrangement, there might be a chance that certain purchasers might be obliged to contribute more than six per cent, to the roads, yet it might possibly have been foreseen, that scarce any instance of that would occur, without an equivalent likewise accruing to the purchaser, from the vicinity of such public roads to their buildings and improvements.

Even in the latter law, establishing private roads, the le- ■ gislature appears to have contemplated the same liability in the purchasers to contribute to the roads, the allowance to be made by those who use the road being expressly confined to the improved lands, through which such roads run; considering, that though they ought to be paid for what by their labour they had made valuable, yet as to the land which lay in a state of nature, they were bound to contribute as much of it, as by the laws of the country, were deemed necessary for the public convenience. If then, as to these inferior kinds of roads, the legislature has sanctioned the original idea, can it be doubted, that with regard to the great provincial roads, being of so much more general utility, they should be exempted from a proportionable contribution?

We cannot therefore consider the legislature’s applying a certain portion of every man’s land for the purpose of laying out public roads and highways, without compensation, as any infringement of the constitution; — such compensation having been originally made in eacb purchaser’s particular grant. But it is objected, that even if the legislature might do this themselves, yet they could not grant the right of doing it, to individuals or a corporate body, for their own emolument, so as to deprive the inhabitants or travellers of the free use of the road, by imposing tolls or other restrictions in the use of it. To this it may be answered, that such an artificial road, being deemed by the legislature a matter of general and public utility, — and considering that it was not to be effected but at a considerable expense, and that the expense could not be defrayed, nor expected to be defrayed in the ordinary way, by the inhabitants of the several townships through which the road was to run, — they devised this mode of accommodating the public with such a road at the expense of private individuals, who from a prospect of deriving some small profit to themselves, might be induced to do it. It was immaterial to the public, whether it was done by a general tax to be laid on the people at once, or by the gradual payment of certain specified sums by way of toll on those only who used the road, the latter being considered as the most equal mode of defraying the charge of making and keeping- such road in repair; for although every man has a right to the free use of a public road, yet every member of the community may be taxed for making that road, in any manner that the legislature may think reasonable and just.

There has been great difference of opinion at the bar as to the ninth section of the act . I have not been without my doubts; but have at length satisfied" my mind as to the construction of it. The words in, over, contiguous and near to the route and tract of the intended road, appear to me to include both die tract of the road and the adjacent lands; and that the words repairing the breaches they may make in the inclosures thereof, and making amends for any damages that may be done to any improvements thereon, likewise relate to both, but may be satisfied without obliging the company to erect new fences on both sides of the road. The general breaches of inclos'ure would Certainly be in cases, where the fences run across the intended road, and these could not be re-erected: but there might be a necessity for taking down fences that run lengthwise along the tract of the ro.ad. It not having been unusual in running roads and laying out townships, in order to avoid as much as possible the doing injury to the neighbourhood, to- run the roads in the line of two neighbouring tracts, the legislature might refisonably suppose such instances might occur in opening this road; and it was therefore proper to oblige ,the company to re-erect the fences by the side of the road. The word repairing seems not to carry the idea of new erections, but restoring what had been prostrated.

In opening other roads public and private of any length, it could scarcely be avoided in many instances to lay open inclosures; but it has never been contended, that either the county or private petitioners were obliged to repair them, by erecting new fences on the sides of the roads. The members of the legislature must have known this, and would therefore if they had meant it in this case, have provided for it in express words. The truth is, that it has been considered, that the running of a road through a man’s land, confers such a benefit on him, as fully compensates him generally, for the expense of the fencing his lands anew.

I observed before, that the words in, over, contiguous and. near to the tract of the road, extended as well to the road itself, as to the adjacent grounds from whence the materials were to be procured, as to the damage done to the inclosure; so likewise I consider it to extend to both, as to making amends for any damages done to the improvements thereon: and if it has in any case been found necessary to pull down houses, destroy orchards, or spoil grain in the tract or route of the road, the company are undoubtedly bound to make compensation to the owners, as well as for the adjacent ground from whence they are to collect the materials. In the present case no such damage is found; and on the whole case it is our unanimous opinion, that judgment should be entered for the defendant.

Judgment for defendant.. 
      
       Section nine. <e That it shall and may he lawful to and for the said presi<c dent and managers, by and with their superintendants, engineers, artists, <( workmen and labourers, with their tools and instruments, carts, waggons, <c wains and other carriages, and beasts of draft or burthen, to enter upon the “ laude, in, over, contiguous, and near to which the route and tract of the said (i intended road shall pass, first giving notice of their intention to the owners thereof, or their representatives, and doing as little damage thereto as possible, “ and repairing any breaches they may make in the incloeitKe thereof, and mak- “ ing amends for any damages that may be done to any improvements thereon, “ by appraisement to be made in the manner herein after directed; and upon a “ reasonably agreement, if they can agree, or if they cannot agree, then upon. “ an appraisement tobe made upon oath or affirmation, by three indifferent free- “ holders,, or any two of them agreeing, to be mutually chosen, or if the owners “ upon due notice shall neglect or refuse to join in the choice, then to be appoint-,f ed by any justice of the peace of the county not interested on either side, and “ tender of the appraised value, to dig, take, and carry away any stone, gravel, “ sand, or earth, there being most conveniently situated for making or repairing “ the said road.”
     