State v. Old Town Bridge Corp.

Yirgin, J.

By special act of February 9, 1827, the respondent, — "Old Town Bridge Corporation,” — was chartered to erect and maintain a bridge over the Penobscot river, " at or near the village of Old Town,” "to connect Marsh Island with the main land” on the east side of the river, now known as Milford ; and *25 to take specified rates of toll which the legislature reserved the right to revise and change "at any time after ten years.”

By an additional act of January 29, 1829, the right to change the rates of toll was extended to " forty years, provided, that at the end of said term, said bridge shall revert to the State.”

Pursuant to the original charter and several subsequent additional acts, the respondent, in the fall of 1831 or spring of 1832, completed and opened its bridge consisting of two separate structures, one extending from Old Town to the island, and the other from the island over the eastern channel to Milford, on the east side of the river.

The bridge was located nearly one half of a mile below the head of " Old Town Falls ” and was maintained there until March, 184(1, when its larger part,— the span over the easterly channel to Milford, — was swept away by a freshet, leaving the pier and abutments standing.

By a special act of August 6, 1846, before the re-building of the respondent’s bridge, another corporation, called the " Old Town and Milford Bridge Company,” was chartered to erect and maintain a toll-bridge of specified dimensions over the Penobscot lliver "at the Old Town Falls, ” "to connect Old Town with the town of Milford.”

Section 11, of this new charter, provided in substance that some one of its corporators should, within fifteen days after its approval, furnish a copy of the new charter to the respondent; and if, before September 10, following, the respondent should give to any two corporators of the new company written notice of the respondent’s election "to build a bridge at Old Town Falls, and on or before October 1, following, shall actually commence the erection, and, within a reasonable time thereafter, complete the bridge” — then the new charter should be null and void, otherwise remain in full force.

As a counterpart of the foregoing provisions of the new charter, the Legislature, two days thereafter, viz: on August 8, 1846, passed an act additional to that of January, 1829, which provided that "so much of the act of January, 1829, as relates to the reversion of the bridge to the State be repealed — provided that this act *26 shall not take effect, unless the proprietors of said bridge [respondent] shall elect to build a bridge at the Old Town Falls, and shall on or before October 1, next, actually commence building such bridge, according to the provisions of the new charter.”

The Attorney General, ex officio, in behalf of the State files this information in the nature of a quo warranto, for the purpose of enforcing the reversion of the bridge and the forfeiture of the chartered privileges, upon the alleged ground that the respondent ever since the expiration of the forty years’ limitation mentioned, to wit, since 1872, has usurped upon the State the various powers, privileges and immunities incident to its corporation.

The respondent’s answer denies the usurpations alleged and asserts that it is lawfully exercising the franchises and privileges mentioned ; and .that in accordance with the provisions of section 11, of the new charter, the respondent, on September 5, 1846, gave to two of the corporators of the new charter written notice of its election to " build a bridge,” and did actually commence and complete the erection of it, " at the Old Town Falls,” and opened the same to the public, on or before October 1, 1846.

Thus is presented the principal issue in the case.

By agreement the case was submitted to the jury under instructions by the presiding justice, and after verdict, to be submitted to the law court for the rendition of such judgment as the legal rights of the parties require.

After the verdict, the respondent filed a motion to set it aside as being against law and evidence, and filed exceptions to certain rulings. Thereupon the cause, by agreement, was reported to the law court which was to rendei such judgment as the legal rights of the parties require; pleadings, verdict, motion, exceptions, charge, and report of the evidence making part of the case.

On recurring to the reported evidence, it appears that, on September 5, 1846, the respondent, by vote of its proprietors " directed its clerk to notify, in writing, two of the corporators [named] of the new charter that it had elected ' to re-build its *27 bridge,’ and had already so far completed the same that it would be open for public accommodation in ten or fifteen days which notice in writing was, on the same day, duly served on the new corporators named.

The preliminary question is, was written notice of the respondent’s election "to re-build its bridge ’’and a seasonable completion of it upon its old pier and abutments, a compliance with the provision of section 11, of the new charter which expressly required the respondent to "build a bridge at Old Town Falls?’’

Theanswerto the preliminary question ofnotice, as wellasthat of location, depends upon the fact whether the phrase " at or near the village of Old Town,” designates the same place as the phrase " at the Old Town Falls,” and was so intended by the Legislature.

The evidence shows that the respondent’s bridge was originally built — and subsequently re-built on a spot 2384 feet, — nearly one half mile, — below the head of " Old Town Falls.” The concurrent testimony of nearly a score of elderly residents, lumbermen, river-drivers and others is, that there is and for many years has been a place on the river, distinctively known as " Old Town Falls,” commencing at the head of the fall near the "Yeazie Piers,” and ending a short distance below the head of Eagle Island; and that no other place on the river has, to their knowledge, ever been known by that name. There is also much documentary evidence of similar import. The distance covered by the falls is about eighty rods ; and from the foot of the falls to the respondent’s bridge is something like seventy rods. And we cannot exclude from our minds that the same facts as to the location of the falls are fully recognized in the opinion of the court in Dwinel v. Veazie, 44 Maine, 173.

The jury, after hearing the evidence and viewing the premises, must have found that the two descriptions were intended to designate two distinct localities.

The definition, of which the words "at” and "at or near” are susceptible, has quite frequently been the subject of legal adjudication ; and their signification has been determined to depend largely upon the subject matter in relation to which they are used and the circumstances under which it becomes necessary *28 to apply them to surrouftding objects. Thus, where a statute requires a notice to be delivered to the defendant, or a member of his family "at his dwelling-house,” a delivery in the yard one hundred and twenty-five feet distant therefrom was held insufficient. Kibbe v. Benson, 17 Wall. 624 . So "at a town” means some place " within the town rather than without or even at the utmost verge but not in it.” Ches. & O. Can. Co. v. Key, 3 Cranch, 606 . "At or near” a certain spot upholds the location of a terminus of a railroad 2475 feet distant therefrom. Fall River Co. v. Old Col. R. R. Co. 5 Allen, 221 . So " near ” a town may mean two hundred rods therefrom. Boston & Prov. R. R. Co. v. Midland R. R. Co. 1 Gray, 340 , 367. So "at and near” may be considered synonymous. Bartlett v. Jenkins, 22 N. H. 63. See also numerous cases collected in 1 Am. & Eng. Ency. 840 et seq.

But whatever signification may be given to those words under various, particular circumstances, we are fully satisfied that the phrase "at or near the village of Old Town” used in the respondent’s charter, and that of "at the Old Town Falls’’selected for the new one, were intended to designate totally different localities. And the fact that the Legislature adopted the latter phrase in the respondent’s additional act of August 8, 1846, makes it morally certain that the intention was, if the respondent elected to build, it must do so at a place other than its old one.

The circumstances attending the promotion and passage of the two latter acts all point in the same direction — that the intention was not that the new charter should become void if the respondent re-built upon the old piers and abutments which escaped the flood. The persons who sought and obtained a charter for another bridge, carried on business on and along both banks of the river opposite the Falls. They wanted a bridge in their more immediate vicinity. New buildings had been erected and new industries had been and were centering there. Iiailroad accommodations were extending to that neighborhood. Two bridges were not needed within one half mile of each other, they would not both pay. And as soon as the principal part of the old bridge was swept away in March, 1846, those imme *29 diately interested in haring a bridge at the Falls applied, at the succeeding summer session of the legislature, for a charter which was provisionally granted. In seeming consideration of the loss of its bridge before the expiration of its term for taking tolls, the preference of building was given to the respondent, not absolutely, but upon two conditions: (1,) That it would forthwith " build a bridge at'the Old Town Falls,” (where the new7 corporation wanted it and were authorized to build one if the respondent did not elect to do it,) and (2,) That it should build it "under its own charter,” but, "according to the provisions of the” new one, which are somewhat different from the old one.

Moreover, if the intention had been that the new charter should be annulled by the respondent’s re-building upon the old location, the Legislature would have said so in terms, instead of adopting the precise language for definitely fixing the location, which, only two days before, had been selected for and used in the new7 charter for a like purpose. The evident intention was to accommodate the local as well as public business. Hence, in a spirit of compromise, the Legislature, by passing these two special acts, in substance said: One bridge only is needed in that vicinity. That one located "at the falls” will better accommodate all concerned than at the old location. And inasmuch as the old one went away twenty-six years before the term fixed for revising its tolls and the reversion of its bridge expired, the respondent, if it choose to, and will seasonably "build a bridge, under its own charter, according to the provisions of the new one at the falls,” where the new company wish it, then the latter must be content.

It was not done. Our opinion, therefore, is that the respondent did not comply with the requirements of section 11, of the new charter, nor with the corresponding provision of its own amended charter.

What consequence resulted from such non-compliance ?

The two acts of 1829 and 1846, both parts of the respondent’s charter, must answer. The act of 1829 expressly limits the respondent’s tenure to the fixed term of " forty yearsfor *30 as it peremptorily declares, " at the end of said tenn said bridge shall revert to the State.” Therefore, unless that limitation has been repealed, it continues in full force, and the respondent’s tenui’e, without any notice, entry or claim whatever, terminated in 1872, "because it was determined by its own limitation.” 4 Kent, 126-7 ; Stearns v. Godfrey, 16 Maine, 158, 160; Ashley v. Warner, 11 Gray, 43 , 44; Prop’rs, &c. v. Grant, 3 Gray, 142 , 147 ; 2 Wash. R. P. 21-2. Will. R. P. § 133.

Was the limitation repealed? Potentially, but not absolutely. To the repeal was annexed a condition, the performance of which alone was expressly made the sine qua non of its becoming effective.

To be sure, the Legislature formed a lifeless body of a repeal out of the dust of words ; but the "building of a bridge at the Falls” was its only breath of life which was never breathed into it, and hence it never became a living repeal. No bridge at the Falls, no repeal. The limitation, therefore, remained in as full force as if the conditional repealing clause had never been passed.

It is contended, however, that assuming the repealing clause never became effective, even then the bridge did not revert by reason of an alleged waiver on the part of the State. We do not think this contention is tenable.

To be sure a charter of a private corporation, when accepted, is generally considered to be a contract between the State and the corporation. 2 Kent, 306 ; Yarmouth v. No. Yarmouth, 34 Maine, 418 ; State v. Noyes, 47 Maine, 189 ; Hathorn v. Calef, 2 Wall. 10 . And a State as well as a private person may waive the breach of a condition contained in its contract. State v. Fourth N. H. Turnpike, 15 N. H. 162, 168. And if the State had seasonably claimed a forfeiture of the respondent’s right to take toll at the old rates without revision, by reason of an actual breach of the condition contained in the act of 1829, viz : " that the said corporation shall, at all times, keep said bridge in good repair,” then the same rule of waiver might apply to the State as to a private person in an analogous case. But as already seen, no condition was annexed to the reversion *31 of the bridge. It was an absolute limitation which has never been repealed or otherwise modified. The tenure of the respondent absolutely determined by its own terms. The statute fixing the limitation executed itself. And hence the doctrine of a waiver of a breach of a condition is in no wise applicable.

Thus, in State v. Fourth N. H. Turnpike, supra, where on an information by the Attorney General, a forfeiture of the franchise was claimed, the court said : "The doctrine of a waiver of a forfeiture by the legislature by subsequent legislative acts does not apply, if by the terms of the charter the franchise absolutely determines on failure to perform the conditions ; for as in such case the corporation has ceased to exist, the doctrine of a waiver is inapplicable.”

So in People v. Manhattan Co. 9 Wend. 351 , it was held that a forfeiture, incurred by non-compliance with the terms of a condition contained in a charter, may be waived by the legislature by subsequent legislative acts recognizing the continued existence of the corporation. The doctrine of a waiver, however, is not applicable, when by the terms of the charter the franchise absolutely determines upon the failure to perform the condition. See also, In re Brooklyn W. & N. Ry. Co. 72 N. Y. 245 ; S. C. 75 N. Y. 385 ; 81 N. Y. 69 ; especially Brooklyn S. T. Co. v. Brooklyn, 78 N. Y. 524, 529 . A fortiori it is not applicable where the corporation’s tenure of a bridge absolutely determines at the end of a fixed term of years in consideration of the unrestricted right of taking toll for so long a period.

It is further urged that the respondent’s tenure of the bridge was revived by the action of the Legislature, in 1874, upon the petition of Hilliard and others, which after reciting the charter and its supplements and the clause relating to the forty years’ limitation, prayed the State to take possession and make it a free bridge.

Assuming that the Legislature might, by some affirmative act, revive, extend and continue in force the respondent’s tenure for another fixed or indefinite term ; or by some supplemental act actually recognizing its present tenure, (Farnsworth v. Lime Bock R. R. Co. 83 Maine, 440,) might thereby bring *32 about the same practical result; this record contains no evidence that any such action on the part of the Legislature ever took place. Practically the Legislature took no action.

A denial of the prayer of the petition, based upon a hearing-before the committee and declared as a judgment which was intended to reach the merits of the case, might possibly be effective. But we are fully satisfied that the simple report of "leave to withdraw,” considered in the light of the circumstances under which such leave was granted, neither had nor was intended to have any such effect as is contended. For the undisputed evidence shows that, after the petition was referred to the " Committee on Ways andBridges,” the respondent’s president, — who had faithfully served his company more than thirty years, — and the representative of Milford and othertowns of the class, had an interview, which resulted in an agreement that the committee might simply report " leave to withdraw.” The merits of the case were never called to the attention of the Legislature by any formal report of facts or otherwise. No supplemental act was reported and no intelligent action whatever was taken for or against the prayer of the petition. Under such a state of facts, it would be idle to hold that the Legislature thereby intended to revive or to recognize the continued existence of the respondent’s title after it exjjired by its forty years’ limitation.

Notwithstanding the president’s personal presence at the capitol, when and where the interview was had and the agreement made, he testified that he had no authority from his corporation for whatever he did or said in relation to the agreement. The full answer is that, whether he acted in the premises with or without authority, it is entirely immaterial, inasmuch as the committee based its action upon the agreement; and hence the Legislature took no action upon the petition by which it was intended to revive or in anywise recognize the respondent’s tenure of the bridge.

As the case, by special agreement of the parties before as well as after verdict, comes forward on report, to the end that this court may "render such judgment as the legal rights of the parties may require,” it is thereby placed substantially upon the *33 same rule as an equity suit, under which the "misrulings of the judge or the improper reception or rejection of evidence,” are not considered of much moment, "if the court decides, upon the whole facts and circumstances, that the verdict is satisfactory.” Larrabee v. Grant , 70 Maine, 82 ; Carleton v. Rockport Ice Co. 78 Maine, 49, 52. Forasmuch, therefore, as upon the whole facts and circumstances, the verdict is satisfactory, we, in the language of the i’espondent’s brief " have not regarded the exceptions as very importantalthough we have given them such examination as to become satisfied that the respondent has no just cause for complaint.

We are of opinion, therefore, that the bridge, together with the fixtures, appurtenances, and approaches necessarily incident thereto, reverted to the State in 1872, when the legal right of the respondent therein ceased. Also that the respondent’s right to levy tolls against the public for passing over the bridge ceased at the same time. Central Bridge v. Lowell, 15 Gray, 106 ; State v. Olcott, 6 N. H. 74. Such ivas the contract between the respondent and the State in 1829. And the tolls for so many years have undoubtedly amply remunerated the respondent for all costs of building, maintaining and repairing the bridge.

"The right to build and maintain the bridge and the right to levy tolls, with the incidental and implied powers and privileges, constituted the entire franchise and qualified property of the respondent.” Central Bridge v. Lowell, supra.

But as there may be a judgment of ouster of a particular franchise and not the whole charter, (King v. London, 2 T. R. 522; People v. Renssellaer, &c., R. R. Co. 15 Wend. 113 , 128 ; Att’y General v. Salem, 103 Mass. 138 ; 2 Beach Corp. § 841; 2 Moraw. Corp. § 1030) we only award, A judgment of ouster of the bridge and its appurtenances and of a. seizure into the custody of the State of the franchise to levy tolls.

Walton, Foster, Haskell and Whitehouse, JJ., concurred. Libbey, f., did not sit.