Louisville & Nashville Branch Tpk. Co. v. Nashville & Kentucky Tpk. Co.

• Court: Tennessee Supreme Court
• Writing for the Court: Totten
• Citation: Louisville & Nashville Branch Tpk. Co. v. Nashville & Kentucky Tpk. Co., 32 Tenn. 282 (Tenn. 1852)
• Decision Date: 31 December 1852
• Parties: LOUISVILLE & NASHVILLE BRANCH TURNPIKE COMPANY v. NASHVILLE & KENTUCKY TURNPIKE COMPANY.

32 Tenn. 282

LOUISVILLE & NASHVILLE BRANCH TURNPIKE COMPANY

v.NASHVILLE & KENTUCKY TURNPIKE COMPANY.

Supreme Court of Tennessee.

December Term, 1852.

This was a bill filed in the chancery court at Nashville, upon the facts and for the purpose stated in the opinion. At the November term, 1851, there was a decree for the respondent; and the complainant appealed.

Trimble and Meigs, for complainant; Ewing & Cooper, for respondent.

Totten, J., delivered the opinion of the court.

This bill is brought to abate an alleged nuisance erected by defendant to the prejudice of the plaintiff's franchise. The chancellor dismissed the bill, and the plaintiff appealed.

These are incorporated turnpike companies. The defendant's was chartered in 1836, and the road was completed and toll-gates erected thereon, denominated 1, 2, 3, 4, 5, and 6, before the plaintiff's was chartered, in 1846.

The defendant's road intersects with the Gallatin and Nashville turnpike road at a point ten miles north of Nashville. From this terminus north one mile is gate No. 1; then at four miles from No. 1 is gate No. 2; at four miles further is gate No. 3. In 1846 gate No. 3 was consolidated with gate No. 2, and toll taken at No. 2 for both, from persons liable to pay at both.

The plaintiff's road is ten miles long, extending from White's Creek turnpike, with which it intersects, in a northerly direction, to defendant's road, and intersects it at a point two miles from its southern terminus. From this point to Nashville it is twelve miles on either road, the distance being the same. The plaintiff has the right, under its charter, to erect two gates; it has erected but one. Near its southern terminus, coming from there to Nashville, there is one other gate on White's Creek turnpike, making two gates on this route from said twelve mile point. On defendant's road is gate No. 1; and then on the Nashville and Gallatin road are two gates, making three gates, on this latter route, from the twelve-mile point to Nashville. The effect of which was that nearly all the travel quit the defendant's road and went upon the plaintiff's road, greatly to the injury of the defendant.

To avoid this injury, and to place the roads upon equality, the defendant erected gate No. 7, at about one-quarter of a mile north of the twelve-mile point--that is, north of said junction--and opened gate No. 1. Now there are but two gates on either route from that point to Nashville. But before No. 7 was erected--that is, in 1849--gate No. 1 was removed by defendant, and erected at a point about one-quarter of a mile north of said junction. It was soon afterwards restored to its former position, left open, and gate No. 7 erected a little further north, at the point before stated. The gate No. 7 is the alleged nuisance which the plaintiff seeks to abate. See the following diagram:

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE

Counsel for the plaintiff insists that defendant has no right to erect gate No. 7--that it is, in effect, a mere removal of gate No. 1; that having elected to erect but six gates, and located No. 1 as before stated, the defendant is concluded, and has no power, under its charter, to change that election or to remove any of its gates.

In the defendant's charter, section 5, it is provided “that said corporation may establish toll-gates, not exceeding seven in number, at such points as the directors may designate.” This is a right to which the defendant is entitled. It may erect a less, but not a greater, number of gates, as its rights and interests may seem to authorize and require. And so as to the location of the gates; that is left to the discretion of the directory. It is a distinct and substantive provision in its charter, not controlled by the provisions in the Franklin Turnpike charter (which is incorporated in this) on the same subject, as has been insisted upon in argument. The provisions in the two charters in this respect are not similar or consistent, and cannot stand together. The...