
    * Jonathan Wales, Jun., Treasurer of the Blue Hill Turnpike Corporation, versus Benjamin Stetson.
    The proprietors of a turnpike-road have no authority to erect a gate upon an existing highway, unless specially authorized by the legislature.
    The declaration was in trespass, and contained two counts. The first was for passing the turnpike-gate without payment of the legal toll; and the second was for cutting down the gate.
    The parties submitted the cause to the Court on a statement of facts, in substance as follows: —
    That the corporation were duly authorized by law to make the road, and, when made and approved by the Court of Sessions for the county of Norfolk, to erect a gate thereon, near the dwelling-house of Joseph Hunt; that the road was so made and approved; that, by the act of incorporation, “ If any person shall cut, break down, or otherwise injure or destroy, the said turnpike-gate, or shall forcibly pass, or attempt to pass by force, without first paying the legal toll at such gate, such person shall forfeit and pay a fine not exceeding fifty dollars, nor less than five dollars, to be recovered by the treasurer of said corporation, to their use, in an action of trespass.”
    That the gate was erected on a part of the turnpike-road where was before an ancient public highway ; that it was near the house of Joseph Hunt, but that it might have been placed nearer to the said house, and in a part of the turnpike-road which was not before a public highway.
    That said Stetson did, on the 29th day of March, 1806, forcibly pass the said gate without payment of toll, and in the evening of said day did cut down said gate.
    If, upon these facts, the Court are of opinion that the corporation had a right, by law, to erect said gate at the place where it was erected, then the defendant agrees to be defaulted; if otherwise, the plaintiff is to become nonsuit.
    .7. Richardson, for the defendant,
    contended that the corporation had no authority, under their charter, to erect a gate on a road previously existing; and he argued,
    [ * 144 ] * 1st. That there is one only mode of discontinuing roads which the law has prescribed, and that it cannot be done by mere implication, as the plaintiff must contend it to be, if he expects to justify the erection of this gate.
    2d. The legislature must have intended' that this gate should have been placed nearer to Hunt’s house, on the new road, and where it would have interfered with no existing rights ; instead of which, the corporation have gone farther from the place assigned them, and erected a nuisance on an old and public road.
    3d. The general act respecting turnpike-roads, which passed March 16, 1805, and before the erecting of this gate, prohibits the erection of any gate upon an old road. The expression of this statute is general, and is not confined to future grants of turnpike-roads.
    
      B. Whitman, for the plaintiff,
    contended that, although the legislature might think it a good general regulation that turnpike-gates should not be erected on old roads, they might still, if they saw fit, grant a turnpike over such road, and that this was interfering in a much slighter degree with existing rights than the laying a new public way over the land of an individual proprietor, which is practised every day, under the standing laws of the government, by the Court of Sessions.
    As to the 2d point made by the defendant: the question is, not whether the corporation might or might not have conformed to the provisions of the statute in some different manner, but whether they have not, in fact, conformed in some maimer. To say otherwise, viz., that the gate ought to be nearer Hunt’s house, because it would then not stand on the old road, is merely begging the question.
    As to the 3d point, he argued that the general statute respecting turnpike-roads cannot operate to narrow prior grants of rights, or to affect the mode of exercising such rights. This would be exceeding the, constitutional restrictions upon the legislature ; it would be an ex post facto law, and contrary to'good faith, as it would [ * 145 ] be narrowing a former grant. It is indecorous * to urge such a construction of a legislative act. This general statute cannot, then, have any bearing upon this cause.
    The Attorney-General (Sullivan) in reply.
    The general statute respecting turnpike-roads is to be considered as operating on all turnpikes, whether existing at the time of passing the law, or established afterwards. It is a singular act of legislation, and seems to have been intended, by the framers of it, to tie the hands of that and all future legislatures. But it was unquestionably intended to be explanatory of all past statutes establishing turnpikes. Great inconveniences began to be' felt from gates being placed on old roads. Toll was demanded of travellers who had not passed a foot on the turnpike-road, which, being straight while the old road was crooked, would frequently intersect the latter.
    But a question may be made, whether the granting, laying out, and completing, a turnpike-road over an old road does not operate as a discontinuance of the old road. The present cause seems to my mind to depend on this question. If this construction obtains, very great mischiefs will follow. Every person travelling on the road between the gates would be liable to a demand of toll, or perhaps might even be a trespasser, as the road is private property.
    One section of the statute enables turnpike corporations to purchase the land over which they make their road; but of whom are they to purchase a public highway, which belongs to all the citizens of the commonwealth ?
    In every view I am able to take of the question, the legislature can, by no fair construction, be presumed to grant to these companies a right to erect a common nuisance on an existing public road, but merely a right to erect a gate on land which they should make their own by a fair purchase, or which being, before the incorporation, private property, they may, by the provisions of their incorporation, have lawfully appropriated to their separate use.
   * The opinion of the Court was delivered by [ * 146 ]

Parsons, C. J.

After considering the several points made in this cause by the counsel, we are satisfied that the question submitted must be decided according to the legal construction of the act incorporating the proprietors of this turnpike. We are not prepared to deny a right in the General Court to discontinue, by statute, a public highway. It is an easement common to all the citizens who are represented in the legislature. The authorizing of the erection of bridges over navigable waters is, in fact, an exercise of a . similar right. We are also satisfied that the rights legally vested in this, or in any corporation, cannot be controlled or destroyed by any subsequent statute, unless a power for that purpose be reserved to the legislature in the act of incorporation

In the consideration of the provisions of any statute, they ought to receive such a reasonable construction, if the words an' subject-matter will admit of it, as that the existing rights of the public, or of individuals, be not infringed. And we are of opinion that this act of incorporation reasonably admits such construction. The corporation had a right to make the turnpike over such parts of the old road as lay in their way. This affects no existing rights, as the easement remains. But before we construe the statute as giving an authority to obstruct a former highway by erecting a gate thereon, it should appear that such construction is necessary to give a reasonable effect to the statute. In this case, no such necessity appears; but from the case as stated, it appears that the corporation might have exercised their right to erect a gate, and to receive the toll, as empowered by the statute, without impeding the travel on the old highway. The statute authorizes the corporation to erect a gate on the turnpike-road near the dwelling-house of Joseph Hunt; and it is agreed in the case, that a gate might have been erected on the turnpike, and near the dwelling-house of J. Hunt, and not upon any part of the old highway. This gate, being on the old highway, is a public nuisance, and the defendant had a right to abate it. Let the plaintiff be called. 
      
       There is an implied reservation m every legislative grant, that the property or right granted may be taken for the public use, when public necessity or utility re quires it, paying therefor a reasonable compensation. — Puff book 8, c. 5, § 7. — Presb. Church vs. City N. Y. 5 Cowen, 541, 542. — Stuyvesant vs. The Mayor N. Y. 7 Cowen, 604, 605. — Beckman vs. S. & S. Railroad Co. 3 Paige, 72, 73. — Providence Bank vs. Billings & Al. 4 Peters, 563 — Vanderbilt vs. Adams, 7 Con. 749.
     