The West River Bridge Company, Plaintiffs In Error v. Joseph Dix and the Towns of Brattleboro and Dummerston, In the County of Windham, Defendants In Error the West River Bridge Company, 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

• Decision Date: 01 January 1848
• Citation: The West River Bridge Company, Plaintiffs In Error v. Joseph Dix and the Towns of Brattleboro and Dummerston, In the County of Windham, Defendants In Error the West River Bridge Company, 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, 47 U.S. 507, 6 How. 507, 12 L.Ed. 535 (1848)
• Parties: THE WEST RIVER BRIDGE COMPANY, PLAINTIFFS IN ERROR, v. JOSEPH DIX AND THE TOWNS OF BRATTLEBORO' AND DUMMERSTON, IN THE COUNTY OF WINDHAM, DEFENDANTS IN ERROR. THE WEST RIVER BRIDGE COMPANY, 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
• Court: U.S. Supreme Court

47 U.S. 507

6 How. 507

12 L.Ed. 535

THE WEST RIVER BRIDGE COMPANY, PLAINTIFFS IN ERROR,v.JOSEPH DIX AND THE TOWNS OF BRATTLEBORO' ANDDUMMERSTON, IN THE COUNTY OF WINDHAM,

DEFENDANTS IN ERROR.

THE WEST RIVER BRIDGE COMPANY, 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.

January Term, 1848

THESE cases were brought up, by a writ of 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 on 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.

The second section fixed the rate of tolls.

The third section enacted, that, at the expiration of forty years from the 1st of December, 1796, the judges of the Supreme Court should appoint commissioners to examine the books and accounts of the company; and if it should appear that the net proceeds should have averaged a larger sum than twelve per cent. per annum, the judges should lessen the tolls, provided they did not reduce them so low as to prevent the proprietors from receiving twelve per cent.

The remaining sections provided for the government of the company, for their keeping the bridge in good repair, &c., &c.

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 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 granted and provided in other cases; provided, that no such real estate, easement, or franchise 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 travelled. That various and repeated

attempts have been made to improve the same, with little success. Your petitioners further represent, that, from actual survey and admeasurement, they are confident a highway may be laid between said termini, and made at a moderate expense, which will avoid most of the hills and be perfectly satisfactory to the public. 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 travelling 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 traveller 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 a 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 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', of Dummerston, and the persons who were entitled to damages for the loss of land, &c., 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 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...