State v. Dearborn , 15 Me. 402 ( 1839 )

The case was continued for advisement, and the opinion of the Court was afterwards prepared by

Weston C. J.

The proprietors of toll-bridges are entitled to receive the tolls, granted to them by the legislature. A question arises, by what remedies this right may be enforced. It may, in the first place, be enforced by suit. We are inclined also to the opinion, that at the place of receiving toll, they might interpose a gate or bar, which they might refuse to open, unless their toll was paid. And if a party, without paying, will pass by force and violence, or attempt to pass, without paying the legal toll, if demanded, he is liable to a penalty, to be recovered for their use. ¡Stat. of 1827, c. 357.

If these remedies prove insufficient, it is for the legislature to provide others. The right to seize and stop the person of the traveller, or his horse or carriage, is no where given. The law does not suffer rights to be enforced by violence. The exercise of the power claimed by the toll-keeper, would rarely fail to occasion a breach of the peace. And if such a right existed, which we do pot admit, we are satisfied that it could not be exercised, until the traveller had arrived at the place where toll was receivable. The statute, from which these proprietors derived their power, recognizes such § place, where also it requires, that the rates of toll should be affixed. The presiding Judge having ruled differently, the exceptions are sustained, and a new trial granted. Although the toll-keeper bad no right to seize the defendant’s horse, yet if he repelled the assailant by unwarrantable violence, he will fail in his justification.