Douglass v. President of the Boonsborough Turnpike Road Co.

Q-oldsboeough, J., delivered the opinion of this Court. The appellees by the Act of 1814, cli. 71, were incorporated with power to make a turnpike road from Boons-borough to a point on the Potomac river. By the 10th section it provides that “hhe said road be made on, over, and upon the bed of the present road, as laid out and used.” The company was authorized to charge tolls on the road upon the completion of it. No effort appears to have been made to carry into effect the object of the char ²³⁶ ter until after tbe year 1852.

Tbe charter was, however, preserved by successive legislation. By the Act of 1852, ch. 266, the appellees were ‘ ‘authorized to occupy, grade, and if necessary, change the public road leading from Sharpsburg to the Potomac river, and to exercise over said road, all the rights and powers, conferred on said corporation hy the Act of 1814, ch. 71, and to charge tolls” as prescribed by this Act. It is conceded that the turnpike road ran through and over the lands of the appellant. The appellee proceeded to occupy and grade the road and tendered no compensation therefor to the appellant.

He thereafter instituted suit against the appellee in 1857, in the Circuit Court for Washington County to recover damages for the immediate trespass in occupying and grading the road without his consent; and in the fourth count of his declaration, claimed consequential damages for injuries resulting to his property from the grading of the road, and from other causes set out in this last count. In the first three counts of the plaintiff’s declaration and in the subsequent pleadings, applicable thereto, as set out in the record, as also in the first three prayers of the plaintiff and the prayers of the defendant, is involved the important and ruling question, whether the Act of 1852 is constitutional, and whether under that Act the appellee ' could take legal possession of the highway mentioned in the Act, and occupy and grade the same for the purposes of a turnpike road, without being subject to a new condemnation and compensation to the appellant for that portion of the road which passed over and upon his land. The appellant expressly raises the point “that the Act of Assembly under which the appellee attempts to justify, is unconstitutional, and no justification could be legally pleaded under its provisions.” It may be properly said in reference to this main question and the objection of the appellant, that the highway on ²³⁷ which the turn|)ikc road is established, having been once condemned and compensation made to the then owners of the soil, that the appellant purchased cum onere; and in our opinion the Legislature had full power to authorize the appellee to occupy and grade the highway for the purposes of a turnpike road, in which occupation the community alone was interested; and if any compensation could rightfully “be claimed and allowed, it was not by, or to the then owner of the soil, but to the community which had borne the burden of the original condemnation. As to the right of the appellee to grade the road, we find sufficient justification in the original Acts of Assembly, by virtue of which, public highways were established.

If under these Acts the county authorities were allowed to