Middle Bridge Corp. v. Marks , 26 Me. 326 ( 1846 )

The opinion of the Court was drawn up by

WhitmaN C. J.

— The plaintiffs were incorporated by an .act passed March 26, 1831, by the name of the “Middle Bridge Proprietors,” to erect a bridge “ in Calais across the St. Croix river.” The suit is in the name of the “ Middle Bridge Corporation.” No question appears to have been made as to the identity indicated by the two descriptions. The suit is said to be on an account annexed to the writ. From the case as made up, and the arguments, we gather, that the object of the plaintiffs is to recover a reasonable compensation of the defendant for the use he has made of the plaintiffs’ bridge. It cannot be pretended, that they have a right, by the terms of the act of incorporation, to recover of him the toll provided for in it. It does not appear that he ever passed their toll house and gate, when the plaintiffs’ toll gatherer was at it, and ready to exact and receive toll. At all other times their gate was to be thrown open for people to pass, as is evident from the terms of the act, without paying toll.

Indeed the complaint does not seem to be that the defendant passed over the plaintiffs’ bridge, erected in Calais. The bridge, instead of being erected in Calais, extends across the St. Croix river, to St. Stephens; and the complaint is only, that the defendant used that part of it on the New Brunswick side of the river, he being the owner of a mill on that side, so situated as not to be accessible otherwise than by passing over that end of the bridge.

The legislature of this State had no power to authorize or create a corporation to build that end of the bridge, it being out of the limits of this State. As an incorporated body, therefore, the plaintiffs, by virtue of their act of incorporation, can have no claim to any use of a privilege, or exercise of authority there.

And it is difficult to perceive how an implied assumpsit, as upon an account, can be maintained against the defendant for the use he may have made of that portion of the bridge on territory under a foreign government.

No express promise is relied upon. No work and labor have been performed for his particular use and benefit; and no goods, wares or merchandize have been sold and delivered to him ; nor has he received money of the plaintiffs ; nor have . they lent or laid out money for his particular use; and it is presumed, no attempt is made to charge him under either of these heads.

Is this claim for use and occupation ? It must, then, appear that he occupied and used the bridge by their permission, acknowledging their right. But does he appear to have done so ? On the contrary he occupies and uses the bridge under a claim of right to do so. He has used the passage way from his mill to St. Stephens for nine or ten years, without paying any thing. He once furnished some plank to repair the bridge. But this would not be an unequivocal recognition of liability to the proprietors to pay for the use of the bridge. It might be done for his own accommodation, on finding that part of the bridge not conveniently passable.

Nor can we regard what passed between him and the toll gatherer, as to a reference, as recognizing his liability. The same witness says the defendant never agreed to pay anything. Besides, as we have before seen, such use would not constitute an item of account; such act would not authorize a declaration upon an implied assumpsit, or on an account annexed.

Plaintiffs nonsuit„