
    Hadley, et ux. vs. Harpeth Turnpike Company.
    1. The legislature may constitutionally take private property for public casements, and may incorporate companies with like power.
    2. The act incorporating the Harpeth turnpike company, declares, that the chief engineer of the State shall survey and mark the most direct and practicable route for the construction of the road, and makes it the duty of the company to construct the road on the route thus marked out. The chief engineer did not actually survey and mark out the route, but gave such a description of the route which hebelieved the road should go, as would “serve to guide the directory in its actual location!” Held, that this was not such a designation of the route and location of the road as would bind the directory, if in their judgment it was not the most direct and practicable route.
    3. The act also directs, that the road shall be commenced “at a point near the place where the Franklin Turnpike road crosses Little Harpeth.” The directory established the commencement of the road about one mile and a half from the point where the Franklin Turnpike crosses Little Harpeth: Held, that a reasonable conformity with the requisitions of the act is all that can be required, and that it could not be said that this point was not in reasonable conformity with the directions of the act.
    Hadley and wife filed this bill in the chancery court at Franklin, on the 5th day of March, 1840, against the president and directors of the Harpeth turnpike company, for the purpose of enjoining the defendants from the commission of a trespass, by the construction of a turnpike road through their land, under the act of 1837-8, ch. 103, page 141 to 148.
    This act creating the Harpeth turnpike company, directs, that the road shall “commence at a suitable point near the place where the Franklin turnpike crosses Little Harpeth, and shall terminate at Riggs’s cross roads.”
    The 22nd section of the act makes it the duty of the chief engineer of the State, so soon as his duties would permit him,- to mark out the most direct and practicable route for the location of the road, and report the same to the governor, &c., and that the route so surveyed and marked, should be the route on which the road should be constructed by the company.
    The act also provides, that if the services of the engineer cannot be had, that then, and in that event the president and directors of the company, or their agents, are authorised to mark out and locate the road.
    The chief engineer proceeded to examine the country, with a view to a designation of the most direct and practicable route. He made a map of a route, and gave a general description thereof. He did not, however, mark it and locate the road. This map and letter of description, or report, was returned to the governor, and by him deposited in the office of Secretary of State, in accordance with the 22nd section of the act incorporating the company. He expressed his regret in this report, that he could not mark out and locate the road, but declared in it that the report would sufficiently indicate the route to the company.
    The route designated commenced within two hundred yards of the point where the Franklin turnpike crosses Little Harpeth. The directors, however, disregarded the indications made in the report of the engineer, and located the route differently, making it commence about one mile and a half from the point where the Franklin turnpike crosses Little Harpeth.
    No depositions were read on the hearing, and no proof offered to show that any injury would be inflicted upon the land of the complainants, further than might result from a permanent appropriation of a portion thereof for highway purposes.
    The bill came on to be heard, on bill, answer, replication, exhibit and report of the engineer, at the May term, 1841, Bramlett-r chancellor, presiding. He being of the opinion that the complainants were not entitled to relief, dismissed the bill. Complainants-appealed.
    
      Meigs, for the complainants.
    This bill is filed to enjoin a trespass,contemplated and commenced by the defendants, in constructing a turnpike road through complainants’ farm, under the act of 1837-8, ch. 103, page 141 to 148.
    The prayer for the injunction is based on a deviation from the route prescribed in the act, and from that reported by the chief engineer, according to the 22nd section of the act.
    1. It is admitted, of course, that the legislature may constitutionally take private property, and may authorise a turnpike company to take private property for the purpose contemplated in this act. But it is most strenuously contended, that if the location of a road is left to a company’s discretion, they are bound in the exercise of such discretion, honestly and sincerely to conform to the legislative intent, and cannot wantonly, merely for private convenience sake, or to reach some object not intended by the legislature,, strain their authority so as to-provide for private wants and purposes.
    
      2. And if the act of assembly itself exactly ascertain the locality of the road from beginning to end, or if the law point out an officer, whose duty it is made to designate the route of the road, the company cannot, after he has designated the route, select another. These points are illustrated and sustained by the following authorities: 2 Story’s Eq. sec. 925 to 929: 2 John. Ch. R. 164: Id. 463: Cooper’s Eq. R. 77: 4 Cond. Eng. Ch. R. 378: 1 Yes. Senr. 188: 2 Dow, 519: 3 John. Ch.R. 287: Baldwin’s R. 218: 7 John. Ch. R. 334 to 336.
    
      Washington, for the company,
   Turley, J.

delivered the opinion of the court.

It is admitted by the complainant in this case, that the legislature may constitutionally take private property for public easements, and may incorporate companies with a likq power. But it is contended, that the location of the easement niiust conform to the legislative intent; that in this case the Harpeth company have violated that,

1st. By commencing the road, they were empowered to make, at a different point from that specified by the act of incorporation; and 2nd, because the location is not in conformity with that surveyed by the chief engineer of the State, which, it is argued, is made conclusive upon the company by the act. We will examine these objections.

The act incorporating the company was passed in 1837-8, and is to be found in the session acts of that period, page 141,-ch. 103. The first section prescribes as the commencement of the road, a point near where the Franklin turnpike crosses Little Harpeth. The proof shows that it is made at a point, about one mile and a half from that place; and the question is, is this distance near that point? We think it is; what is near, is a difficult thing to argue about, and we shall not attempt it; let it suffice, that a reasonable conformity with the requisitions of the act is all that can be required', and surely, it would be difficult to say, that a difference of a mile and a half is unreasonable.

The 22nd section makes it the duty of the chief engineer of the State, as soon as his official duties will permit, to survey and mark out the most direct and practicable route for the construction of the road, and report the same to the Governor of the State, who shall file the same in the office of the secretary of the State, and makes it the duty of the company to cause the road to be constructed upon the route thus surveyed and marked out.

It cannot be questioned, that if the chief engineer of the State, has inpursuance of the statute, surveyed and marked out the route for the road, the company is bound by it; but has he done -so? We think not; a reference to his report will show this plainly. He says in his report, “it is to be regretted, that want of proper time, will not allow me to make an actual location of the road, and as that cannot be done, I deem it proper to give such description of the route, as will be sufficient to fix its actual position, with near approximation, and such as will guide the directory of the company in its actual location.” Now it is manifest that this is not a surveying or marking out of the road, and was not so considered by the. engineer, for he says, “it will serve to guide the directory in its actual location;” a thing merely intended to aid them in marking it. Then the road has not been surveyed and marked out by the engineer. What is the consequence? The same section of the act provides that in case the services of the engineer cannot be obtained, the route for the road shall be marked out according to the provisions of the 6th section of the act, which empowers the directors, or a majority of them, or such person as they may appoint, to locate the route of the road. This they are doing, and so far as this case shows, in reasonable conformity with their grant.

The complainant, then, has no right to stop them, and the injunction heretofore granted him will be discharged, and his bill dismissed. -  