McLeod et al., vs. The Savannah, Albany and Gulf R. R. Co. mous elephant, the old bridge is too weak to bear the weight of the animal. The proprietor refuses to put him over. Have not the owners a right to provide the means by flat or otherwise to transport their property? But we forbear to discuss the question. The identical principle involved, has come before the Courts of New York, and been solemnly adjudicated adversely to the claim set up by the complainants in their bill. In the case of the Mohawk Bridge Company against the Utica and Schenectady Railroad Company, 6 Paige, 564. Chancellor Walworth says: "Neither is the Legislature deprived of the power to provide for the conveyance of freight or passengers, from one part of the State to another, by an improvement which was entirely unknown, at the time, when the grant to the bridge company was made. And if the grant had in terms given to the corporation the exclusive right of erecting a toll bridge across the river at Schenectady, this subsequent grant to the railroad company to cross the river with their railway from Schenectady to Utica, and to transport passengers thereon, in the ordinary course of their business, in the conveyance of travelers from one place to another, would not, have been an infringement of the privileges conferred by such prior grant; as the railroad bridge would not be a toll bridge, within the intent and meaning of the grant to the first company." I am aware that a decision has been made in Connecticut counter to those in New York. But it is New York, and not Connecticut, that has given the law to the States of this Union, as the history of our jurisprudence will demonstrate. It is needless to kick against the pricks. Old things must give place to new. The forest must yield to the waving harvest and golden fruit; the red man of the woods to the sturdy and stalwart Saxon; the turnpike to the canal, and both to the railway. The complainants' were free to abandon their bridge at any time, as did Hampton & Gunn, and there was none to molest them. There was, in this respect, no mutuality in this, so called, contract. And if their profits McLeod et al., vs. The Savannah, Albany and Gulf R. R. Co. have been impaired by this new mode of travel and transportation across rivers and morasses, they stand in no worse situation, and are no more entitled to compensation, than are thousands of individuals throughout the land, who are daily subjected to losses and ruin by new inventions and improvements, superseding and displacing those already in use. They have reaped no doubt, long ago, twice-told, the money they have expended, and should be satisfied with a monopoly of a half a century, granted improvidently, if not illegally the prior right to Hampton & Gunn, never having been judicially forfeited. 3 Kent, 458; Thompson vs. The People, 23 Wendell, 579, 580, 596. By my direction, my friend Mr. Smale, assistant Reporter, has inserted entire, in the bill of exceptions, the admirable judgment pronounced in this case by our brother FLEMING; from whom, whenever I have the misfortune to differ, which has been but seldom, I suspect the soundness of my own opinion. Would that the briefs of the able counsel who so thoroughly investigated this question, were allowed by law to be reported. Their omission in this and other cases is an irreparable loss to the profession. To their labors I am greatly indebted for the alleviation of my own. Judgment affirmed. BENNING, J. concurring. The Savannah, Albany and Gulf Railroad Company erected a bridge for their Railroad, across the great Ogechee, "within five miles" of the toll bridge of the plaintiffs in error. The charter of the company said what was equivalent to saying, that they might erect this bridge. The fifth section of the Act of 1806, authorizing the erection of the toll bride, has these words: "it shall not be lawful for any person or persons, at any time or times, to build any bridge, or keep any ferry, on the great Ogechee, within McLeod et al., vs. The Savannah, Albany and Gulf R. R. Co. five miles, either above or below the said bridge," (the toll bridge,) “which is hereby exclusively vested in the said Joseph Hill, his heirs, and assigns.” The second section had given to Joseph Hill, his heirs and assigns, the exclusive privilege of erecting the toll bridge. The fourth section gave him the right to receive "a toll equal to that," theretofore, "granted to" "Wade Hampton and James Gunn." The toll granted to them was," for every loaded wagon, and other four wheeled carriage, four shillings and eight pence; for every empty wagon, two shillings and four pence; "for every loaded cart, or other two wheeled carriage, two shillings and four pence; for every empty cart, or dray, one shilling and two pence; for a man and horse, six pence; for a a foot passenger, three pence; for all black cattle per head, three pence; for hogs, sheep, and goats, two pence; for every rolling hogshead with two horses, and drawn, one shilling and two pence; for every rolling hogshead with one horse and drawn, one shilling and no more." Watk. Dig. 420. The question may be stated in general terms, to be this: Have the plaintiffs, the owners of the toll bridge, a right to sue the Railroad Company, for the erection of the railroad bridge? The Court below held that they have not; and I think, that it held right. [1.] Grants of monopolies from the Legislature, like the grant contained in the Act of 1806, are to be construed strictly, so as to make them convey as little as possible. This Court, speaking of this very grant, said, that such grants are to be strictly construed." McLeod vs. Burroughs, 9. Ga. 221. These grants from the Legislature, occupy in our law much the same place, which, grants from the King, occupy in the English law; and they must receive much the same construction. "By the" (King's) "grant of all mines in such a soil, altho' the grant be ex certa scientia et mero motu, McLeod et al., vs. The Savannah, Albany and Gulf R. R. Co. mines royal of gold or silver, shall not pass, but the words, (soil and mines,) shall be taken in a common sense; and to a common intent; but to have them pass, there ought to be special words." 1 Coke 46. The case of Allin Woods. According to this, the words, "any bridge," contained in the grant of 1806, are to "be taken in a common sense, and to a common intent." Taken in this manner they will no more include a railroad bridge, than will the words, "all mines," taken in this manner, include gold or silver mines. In 1806, when the words, "any bridge," were used, railroads and railroad bridges were unknown. It is therefore, impossible, that the legislature, in using the words, "any bridge,” could have had railroad bridges in their mind. I think, then, that the words, "any bridge," in the Act of 1806, do not include railroad bridges. [2.] But, if I though they did, I should still think the plaintiffs not entitled to sue the defendants, or, at least, not entitled to recover of the defendants, more than nominal damages. A toll bridge is a public highway over which, every body, with his goods and vehicles, has the right to pass. If there is a toll laid on him, or on his goods, or on his vehicles, he cannot pass without paying toll; if there is no toll laid on him or on his goods, or on his vehicles, he can pass without paying toll. In the case of the present bridge, a man could pass the bridge, toll free, with a drove of mules or horses, or with camels, or elephants; or riding in a sleigh, or in a one wheeled carriage, for on none of these things is any toll imposed. So, I suppose, for the same reason, the army, horse, foot, and artillery, could pass toll free. In a word, every thing could pass; and every thing on which, no toll was laid, could pass toll free. This being so, a railroad car, with its load of passengers, or freight, would have the right to pass the bridge toll free, for no toll is laid upon the passage of such a car. True, a Rogers, Sheriff, vs. May. railroad car might find some difficulty in getting to, and over, the bridge; but this does not affect the right; and, besides, a time may come, and, in the opinion of many persons, will come, when the steam engine, with its train of cars, will be seen running on the common roads. But if this be so, then it can be no injury to the bridge, that railroad cars do not pass over it, but pass the river else. where; it must be a benefit; it must be the means of saving the bridge, from much wear and tear, if not, from destruction, under the mighty weight of the strange engines and cars. The case stands thus: The Railroad Company have the right to cross the toll bridge with their engines, cars, &c. toll free. They do not choose to insist on this right, but choose to cross on a bridge of their own;-Can the owners of the toll bridge sue the Railroad Company for pursuing this course? If they can, surely, it cannot be, that they are entitled to recover more than nominal damages. ed. I think the judgment of the Court below ought to be affirm MCDONALD, J. dissented. R. W. ROGERS, Sheriff, &c., plaintiff in error, vs. ROBERT H. MAY, defendant in error. A Sheriff arrested a defendant in ca. sa., and took from him a defective bond under the honest debtors' Act of 1823, and let him go at large. In doing this, the Sheriff acted in good faith, and under legal advice. Afterwards, the Sheriff re-arrested the defendant, and took another and a perfect bond, under the Act aforesaid; and this he did, time enough to make the bond, &c., returnable to the same Term, to which the first bond, &c., were properly returnable. Held, That the Sheriff was not liable to a rule for the money due on the ca. sa. |