V.

THE WEST RIVER BRIDGE Plaintiffs in Error, JOSEPH DIX and The Towns of Brattleboro' and Dummerston, in the County of Windham, Defendants in Error.

The remaining sections provided for the gov

Plaintiffs in Error,

V.

THE TOWNS OF BRATTLEBORO' AND DUMMERSTON, in the County of Windham, and Joseph Dix, Asa Boyden, and Phineas Underwood, Defendants in Error.

Bridge erected and owned by private corporation may be taken for public highway, under general act, compensation being made, same as to natural persons.

A bridge, held by an incorporated company, under a charter from a State, may be condemned and taken as part of a public road, under the laws of that State.

This charter was a contract between the State and the company, but, like all private rights, it is subject to the right of eminent domain in the State.

The Constitution of the United States cannot be so construed as to take away this right from the States. Nor does the exercise of the right of eminent domain interfere with the inviolability of contracts. All property is held by tenure from the State, and all contracts are made subject to the right of eminent domain. The contract is therefore not violated by the exercise of the right.

The Constitution of the United States intended The Constitution of the United States intended to prohibit all such laws impairing the obligation of contracts as interpolate some new term or condition, foreign to the original agreement.

Property held by an incorporated company stands upon the same footing with that held by an individual, and a franchise cannot be distinguished from other property.

HESE cases were brought up, by a writ of writ error issued under the twenty-fifth section of the Judiciary Act, from the Supreme Court

of Judicature of the State of Vermont.

In 1795, the Legislature of Vermont passed an act, entitled, "An Act granting to John W. Blake, Calvin Knowlton, and their associates, the privilege of building a toll bridge over West River, in Brattleboro'."

The first section enacted that Blake, Knowlton, and their associates, should be and continue a body politic and corporate, by the name of the West River Bridge Company, for one hundred years; and that they should have the exclusive privilege of erecting and continuing a bridge over West River, within four miles from the place where said stream united with

Connecticut River.

508*] *The second section fixed the rate of

tolls.

The third section enacted, that, at the ex

piration of forty years from the 1st of December, 1796, the Judges of the Supreme Court should appoint commissioners to examine the

NOTE. As to what laws are void as impairing the obligation of contracts-see notes to 3 L. ed. U. S. 162; 4 L. ed. U. S. 529.

Eminent domain; what may be taken-see note

to 33 L. ed. U. S. 740; 40 L. ed. U. S. 188.

bridge in good repair, etc., etc.

During the years 1795, 1796, and 1797, the company built the bridge.

In 1799, Josiah Arms conveyed to the company a small piece of land, about two acres, lying on the south bank of the West River.

In 1803, the Legislature passed a supplement to the charter, which altered the rate of tolls,

but left the remaining parts of it unaltered. In November, 1839, the Legislature passed an act entitled, “An Act relating to highways." in and whereby it was enacted and provided, that "whenever there shall be occasion for any new highway in any town or towns in this State, the supreme and county courts shall have the same power to take any real estate, easement, or franchise of any turnpike, or other corporation, when, in their judgment, the public good requires a public highway, which such courts now have, by the laws of this State, to lay out highways over individual or private property; and the same power is granted, and the same rules shall be observed, in making compensation to all such corporations and persons, whose estate, easement, franchise, or rights shall be taken, as are now that no such real estate, easement, or franchise granted and provided in other cases; provided, shall be taken in the manner and for the purposes aforesaid, unless the whole of such real estate, easement, or franchise belonging to said | corporation shall be taken, and compensation made therefor."

On the 25th of August, 1842, Joseph Dix, and fifty-four other persons presented the following petition to the County Court for the County of Windham:

"That the public highway or stage road, leading from the stage house of Henry Smith, in Brattleboro', through the northerly part of said town, and through the town of Dummerston, to the south line of Putney, in said county, has for a long time been a subject of great complaint, both on account of the steep and dangerous hills, and the great difficulty of keeping the same in repair, as now traveled. That various and repeated *attempts [*509 have been made to improve the same, with little success. Your petitioners further represent, that, from actual survey and admeasurelaid between said termini, and made at a modment, they are confident a highway may be hills and be perfectly satisfactory to the puberate expense, which will avoid most of the lic. Your petitioners are aware that some alterations have recently been made on said route by a committee of this court, upon the petition of Paul Chase and others, and that indictments are now pending against said towns for not making the same; but your petitioners believe that said committee, in ordering said alterations, are influenced by the solicitations of interested individuals, rather than

the public good, and that if said alterations are worked, they would form but little improvements, and that the public will never be satisfied until said highway is laid on the best possible route; and further, that it will cost as much to make said alterations (which we consider to be useless), as it will to make a good traveling road on the route contemplated by the petition.

"And your petitioners further represent, that the toll bridge across West River, on said route in Brattleboro', owned by the West River Bridge Corporation, is, and for a long time has been, a sore grievance, both to the traveler and the inhabitants of the towns in the vicinity, who have occasion to pass and repass, travel and labor, on said highway; and however the Legislature in the infancy of the State may have exercised sound discretion in granting said toll bridge, yet, in the present improved and thriving condition of the inhabitants, your petitioners are unable to discover any good reason why said grievance should longer be endured, or why the wealthy town of Brattleboro' should not, as well as other towns much less able, sustain a free bridge across West River. Your petitioners therefore pray the court, by an able, judicious, and disinterested committee, to cause said route to be surveyed, and such alterations and improvements to be made in the old road, or a new one to be laid, as the public good may require; and also to take the real estate, easement, or franchise of the 'West River Bridge Company,' a corporation owning the aforesaid toll bridge, for the purpose of making a free road and bridge across said river, agreeable to the statute in such case made and provided; and as in duty bound will

ever pray.

In conformity with the above prayer, the court appointed three persons to examine the premises and make report.

In May, 1843, the commissioners reported that they had examined the premises, and were unanimously of opinion that a new road ought to be laid out over a considerable portion of the distance between the termini mentioned in 510*] the petition, *which road, they said, they had caused to be surveyed and laid out. The report then proceeded as follows:

"The said commissioners also examined the toll bridge across West River in Brattleboro', and have taken into consideration the propriety of laying a free road across said bridge, at the expense of said town of Brattleboro', as contemplated by said petition; and in this the said commissioners were unanimously of the opinion that public good required that the real estate, easement, or franchise of the West River Bridge Corporation should be taken, and compensation made therefor, that said toll bridge might thereafter become a free bridge. The said commissioners have therefore assessed to the said West River Bridge Corporation the sum of four thousand dollars, to be paid to the said West River Bridge Corporation out of the treasury of said town of Brattleboro', in full compensation for all real estate, easement or franchise belonging to said corporation, which real estate, easement, or franchise is situate in said town of Brattleboro', near the mouth of West River, and is supposed to be more particularly described in a deed from Josiah Ames

to the West River Bridge Company, dated on the first day of April, in the year seventeen hundred and ninety-nine, and recorded in Brattleboro' records of deeds, liber D, page 203, containing two acres of land, be the same more or less, with a covered bridge, gate, toll house, barn, and other buildings thereon. "Thomas F. Hammond, "Julius Converse, "Isaac N. Cushman, "Commissioners."

To this report, the West River Bridge Company, the town of Brattleboro', the town of Dummerston, and the persons who were entitled to damages for the loss of land, etc. all filed objections.

The town of Brattleboro' filed five objections, the last of which was as follows:

"5. Because it does not appear from said report, and is not true in fact, that there was, or that said commissioners considered that there was, any occasion for any new highway on said route within a great distance, to wit, within two miles of said bridge."

The town of Dummerston filed ten objections, the first four of which are as follows:

"1. Because said commissioners proceeded in said report to discontinue the Indited Road, so called; a road of which the petition of Joseph Dix and others did not ask the discontinuance; *a road which said town was [*511 then liable to make, and has since raised money to make.

"2. Because the acceptance of said report would render the maintenance of two roads necessary through a large part of the town, while the natural difficulties are so great, that, with only one, the burdens of said town, when compared with its means, are unusually onerous.

"3. That said surveyed route, or Nurse Swamp route, so called, is a longer, more wet, and more expensive route, between the termini in question.

"4. That said commissioners were partial, prejudiced, and mistaken; and acted under the influence of misrepresentations made by interested persons."

The persons to whom damages were awarded by the report were fifteen in number. Eleven of these filed six objections, the first of which was as follows:

"1. Because the said commissioners were partial, prejudiced and mistaken, and acted under the misrepresentations made by interested persons."

The West River Bridge Company filed seven objections, the sixth of which stated the charter, their observance of it, and their desire for its continuance.

In November, 1843, the case was tried, and the report of the commissioners was accepted. The two towns were ordered to pay the damages awarded to the persons through whose lands the road was laid out, and "the town of Brattleboro', to pay to the West River Bridge Company the sum of damages, as assessed by said commissioners, by the 31st day of May, 1844; and that said bridge be opened for the free public travel by the 1st day of June, 1844."

In February, 1844, a writ of certiorari was sued out from the Supreme Court, whereby the whole proceedings of the County Court were brought up for review. Upon the argument,

the West River Bridge Company, in addition to the exceptions which they had presented to the court below, filed the two following:

“First. That the said statute of this State, having been enacted long after the said grant by the same State of the said franchise of toll to the said West River Bridge Corporation, and long after the said grant was accepted and acted on by the said corporation, is of no validity for the purpose of authorizing the taking of the said franchise against the consent of said corporation, or the laying out of a free public highway over and upon the said bridge, on the ground that the said statute, if it purports to authorize the proceedings aforesaid, is a violation of the contract of this State with the said 512*] corporation, and is *therein repugnant to that clause of the Constitution of the United States which provides that no State shall pass any law impairing the obligation of contract. "Second. That inasmuch as it is apparent upon the said record, and proofs filed in said cause, copies of which are hereunto annexed, that there is no occasion for any new highway within the said town of Brattleboro', near said bridge; and that no new highway is in fact laid out, or adjudged to be laid out, within the distance of two miles from either terminus of said bridge; and that the damages awarded to the said West River Bridge Company are grossly inadequate as a compensation for the value of the corporate franchise, and other property adjudged to be taken; the taking of the said franchise, and laying out of the said free public highway over and upon the said bridge, by the judgment of the said County Court, under such circumstances, a mere evasion, under color of law, of the said provision of the constitution of the United States, and an exercise of authority under this State which is wholly invalid as against the said West River Bridge Company, on the ground of its being repugnant to the constitutional provisions aforesaid."

The Supreme Court passed the following judgment:

"And thereupon, after hearing the respective parties by their counsel, upon their respective allegations, and the said execptions in the said record contained, it is considered, or dered and adjudged by the court here, that the statute aforesaid was and is valid for the purpose of taking the said franchise and laying out the said free public highway over and upon the said bridge; and that the same was and is in no wise repugnant to the Constitution of the United States; and that the said proceedings of the said County Court were a lawful exercise of the authority of the State under the said statute, and neither repugnant to nor an evasion of the provisions of the said Constitution; and that there is no error in the record and proceedings aforesaid; and that the said defendant parties recover their costs."

To review this judgment, a writ of error brought the case up to this court.

It was argued by Mr. Webster and Mr. Collamer on behalf of the plaintiffs in error, and Mr. Phelps for the defendants in error. On both sides argumentive briefs were filed; and although all the counsel added many illustrations and arguments, orally, to their respective briefs, in the progress of discussion, yet

the reporter thinks it the safer course to reprint the briefs themselves.

*Mr. Webster and Mr. Collamer, for [*513 the plaintiffs in error:

In the township of Brattleboro', in Vermont, A. D. 1795, there was a public highway along the west bank of the Connecticut River, and passing across West River, a tributary of the Connecticut, which public highway was resurveyed that year, and ever has, and still does, continue unaltered within said town. This resurvey was under an act of 1795. Whitney's affidavit, and copy of survey; Record, pp. 34, 35.

In 1795, by an act of the Legislature of Vermont, the plaintiffs were created a corporation for one hundred years, with the exclusive privilege of erecting and continuing a toll bridge over West River, within four miles of the place where that stream unites with Connecticut River, and the rate of toll was fixed by said act. The act provided that the bridge should be built where the road was to be surveyed, and within two years, and it was so done. Charter, Record, p. 26, sec. 4, and proviso to sec. 6, p. 28.

The act further provided, that at the expiration of forty years the outlay and income of the plaintiffs might be examined by commissioners, appointed by the Supreme Court; and, if the plaintiffs had realized more than twelve per cent. per annum, the court might reduce the tolls so as to yield only that amount. The plaintiffs, within the limited time, erected the bridge, and have ever since sustained it, having several times rebuilt it; and now, at great expense, have erected so large a part of it with stone, that to sustain it is much less expense than formerly, and the franchise and bridge are now of great value, to wit, of the value of ten thousand dollars. Record p. 56.

By the general law of Vermont relating to highways, the County Court, on petition, may appoint commissioners to lay out highways within the county, who survey the way and assess the damage to the landholders, and make report to the court, who thereupon make their orders accordingly; and the same power is given to the Supreme Court, in laying highways into two or more counties. Revised Statutes of Vermont, p. 553.

In November, 1839, the Legislature passed "An Act relating to highways," which provided, "whenever there shall be occasion for any new highway in any town or towns within this State, the supreme and county courts shall have the same power to take any real estate, easement, or franchise of any turnpike or other corporation, when in their judgment the public good requires a public highway, which such courts now have, by the laws of the State, to lay out highways over individual or private property; and the same power is granted, and *the same rules shall be observed, in [*514 making compensation to all such corporations and persons whose estate, easement, franchise, or right shall be taken, as are now granted and provided in other cases; provided that no such real estate, easement, or franchise shall be taken in the manner and for the purpose aforesaid, unless the whole of such real estate, easement, or franchise belonging to said corporation shall be taken, and compensation made therefor.”