Buncombe Turnpike Co. v. Allen , 22 N.C. 114 ( 1838 )

The defendant answered and set up title as one of the assignees of the unexpired term of the grant of the turnpike road to Hoodenpile (117) and Barnard. He said that the plaintiffs run their road into his, against his will and consent; that he had received not more tolls that he was entitled by law to take for travel over his road; that the commissioners put down his gate, upon a view illegally made, when he was not present and had no notice, and that he set up his gate again by the permission of one of the commissioners.

The bill was filed in February, 1831, and an injunction was granted, with leave to the defendant, notwithstanding, to bring an action at law against the plaintiffs. When the answer came in, the cause was set for hearing upon the bill and answer, and on the hearing in October, 1833, the court dismissed the bill, and the plaintiffs appealed. In looking into the several acts of Assembly under which the defendant claims the grant of turnpike privileges, it seems that the several terms of years therein mentioned expired at the close of 1831. The defendant having now no pretense to keep up a toll-gate across any of the roads, it is unnecessary for us to make any decision on this part of the case, as it is admitted that the gates put up by the defendant have not been kept up since the filing of this bill.

Secondly, we do not see any ground upon which the plaintiffs have a right to ask an account against the defendant. The defendant may have improperly exacted tolls from the public, but there is nothing in the bill which shows that he has ever received or abstracted one cent of tolls which by law and right belonged to the plaintiffs. The plaintiffs have always received their full amount of tolls from travelers according to the rates which they had established. The circumstances that the company were induced to lower their rate of tolls in consequence of the alleged encroachments and illegal acts of the defendant might perhaps have been taken into consideration in an action on the case at law; but it is no reason for an account in this Court for receiving or abstracting the plaintiffs' tolls. (118)

PER CURIAM. Affirmed, with costs.