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Virginia and Truckee Railroad Co. v. The County Commissioners of Lyon County.

County it would perhaps have accommodated more persons than at present; but would that have been a substantial compliance with the statute? No more than if a contractor who had been engaged to build one a wooden house should erect a stone one, and endeavor to force it upon his employer on the plea that it was better in every respect than the one bargained for.

That was not the contract, would be the answer; you are a volunteer. And so here, the 'plaintiff did not fulfill its contract, but volunteered to do something else. The defendants, if private parties with full natural powers, could refuse acceptance; as special agents, they have no option but to do so. (City of Aurora et al. v. West et al., 22 Ind. 88.)

The whole question involved is, whether building a railroad twenty-four hundred feet from an object named is a substantial compliance with direction or agreement to build it not more than twelve hundred feet therefrom.

It takes no great amount of law or logic to solve the problem. Of course it is no such compliance, and all suggestions of impracticability of compliance or additional benefit from the deviation are beside the point. The matter stands as if the Legislature had said to plaintiff: If you, in building your road from Virginia City to Carson City, can pass a certain point, still keeping your road firstclass, you shall have seventy-five thousand dollars in Lyon County bonds; if not, then you must go without them. The plaintiff failed to make the connection, and must consequently fail to receive the money.

For the commissioners to have taken any other view would have been to exceed their powers. For this Court to do as asked by plaintiff would be not to interpret a contract, but to make a new one. No Court has any such power.

The application for the peremptory writ is denied, and the proceeding dismissed at plaintiff's costs.

Buckley v. Curry.

STATE OF NEVADA EX REL. JOHN BUCKLEY v. ABRA

HAM CURRY et al.

TOLL ON CARSON CITY AND EMPIRE MACADAMIZED ROAD. Where a toll road franchise between Carson City and Empire, granted in 1864, was by judicial action in May, 1865, declared forfeited; and in June, 1865, the holder sought to acquire the right to collect tolls on it by a compliance with the general Act of March, 1865, relating to toll roads, (Stats. 1864–5, 254): Held, that as the statute provided that no toll road constructed under its provisions, or otherwise, should "interfere with any road or highway in general use by the traveling public," no right could, in that maner, be acquired to collect such tolls. EFFECT OF FORFEITURE OF TOLL ROAD FRANCHISE. Under the provisions of section seven of the Act concerning toll roads, (Stats. 1864-5, 254) where the franchise of a toll road, previously granted, became or was judicially declared forfeited: Held, that the road became the property of the county, and that, if the county commissioners took no action for the collection of tolls, it became a free highway.

This was an information filed in the Supreme Court on May 16th, 1870, against Abraham Curry and P. H. Clayton, his assignee in bankruptcy, alleging the illegal erection of a toll gate, and the collection of tolls on a public highway, running from Carson City, by the way of "Curry's Warm Springs," to Empire City; all in Ormsby County. It appears that Curry collected tolls on the road till he was adjudged a bankrupt, in September, 1867; after which time P. H. Clayton, his assignee, assumed as such assignee to exercise the franchise.

Defendant put in an answer, claiming to have a right to collect the tolls by virtue of a compliance with the Act concerning toll roads of March 8th, 1865, to which answer relator demurred.

R. M. Clarke, A. C. Ellis and T. D. Edwards, for Relator.

P. H. Clayton, for Respondent.

I. The decision of the Supreme Court (1 Nev. 251) only declared a forfeiture of the franchise, and affirmative action on the part of the county commissioners was indispensably necessary to determine the subsequent status of the road. They had the right to declare the road free, or to continue the collection of tolls. From anything that appears, they may have authorized Curry to keep the road in good traveling condition and to collect tolls thereon.

Buckley v. Curry.

II. The object and intent of section twelve of the Act concerning toll roads was to prevent appropriation as a toll road of any road which had been constructed by any county, or by the people living adjacent to such road, or by emigrants; in short, to prevent the use of roads established and constructed at the expense of the people for private gain and advantage. The road in question was in no sense at the date of the passage of the act" a road or highway in general use by the traveling public." It was a road passed over only by such persons as paid the tolls demanded by the builder and maintainer. It was not a free public road, such as the act contemplated should not be interfered with by the location of a toll road thereon.

By the Court, Lewis, C. J. :

By an Act of the Legislature of the Territory of Nevada, approved February 9th, A. D. 1864, the defendant Abraham Curry and his associates were authorized to construct a macadamized road between Carson City and Empire, and after its completion to collect tolls from all persons traveling over it. Claiming that he had constructed such road as the law required, Curry collected tolls as authorized by the Act; but in the month of May, A. D. 1865, the franchise thus claimed by him was declared forfeited by this Court. On the third day of June following, however, he sought to maintain his privilege of collecting tolls by complying with the requirements of an Act of the Legislature, entitled "An Act to provide for constructing and maintaining Toll Roads and Bridges in the State of Nevada," approved March 8th, 1865. (See Statutes of 1864-5, 254.) Section twelve of that law declares that "no toll road, constructed under the provisions of this Act, nor otherwise, shall interfere with any road or highway now in general use by the traveling public or the emigration from the East."

It is quite clear, if at the time Curry endeavored to secure the road by virtue of the provisions of this last Act, it was a "road or highway" in general use by the "traveling public," it could not be taken under this law. That it was so can scarcely admit of doubt. On the thirty-first day of May, Curry was deprived of his franchise, the Court holding that he had not complied with the law

Hobart v. Ford.

granting it, and consequently that he never acquired the right to collect tolls. (1 Nev. 251.) Thereupon the road either became a general public highway, or by virtue of section seven of the same law it became the property of the county. In either case, Curry had no right to continue the collection of the tolls. That section declares that "upon the expiration or forfeiture of any toll-road franchise, the ownership, with all the rights and privileges, shall vest in the county or counties in which it is located, and the county commissioners may declare it a free highway, or they may collect tolls on such roads to keep them in good repair."

For a period of three days at least—that is, between the time of the forfeiture of the charter and the third day of June-this road was the property of the county, and whether any tolls whatever should be collected on it or it should be a free highway, was a matter resting entirely with the county commissioners of Ormsby County; but they never authorized the collection of tolls on it, therefore it must be held that they intended to leave it a free highway. However, if that had been done by them it would not help the defendant here; for he does not attempt to justify by any right in or derived from the county, but claims the privilege in himself by virtue of compliance with the provisions of the Act already referred to. Under that Act, as we have shown, he acquired no right, therefore the collection of tolls by him is unauthorized. Judgment of ouster must be entered.

W. S. HOBART, RESPONDENT, v. PATRICK FORD, APPELLANT.

ACT OF CONGRESS AS TO WATER RIGHTS OVER PUBLIC LAND. The Act of Congress (14 Statutes at Large, 253, Sec. 9) gives-as clearly as Acts of Congress usually express their objects—a right of way over public lands to all who may desire to construct ditches or canals for mining or agricultural purposes. RIGHT UNDER LAW OTHER THAN LAW SPECIALLY RELIED ON. Where a plaintiff attempted to construct a flume for mining purposes over certain public land, and being prevented by the person in possession, brought an injunction suit to prevent such person's further resistance: Held, that though plaintiff claimed the right of way to construct his flume under the State law, he was not by such claim prevented from relying also upon the Act of Congress giving such right, the facts pleaded being sufficient to bring him within the Act.

Hobart v. Ford.

Under the Act of

RIGHT OF WAY OVER PUBLIC LAND WITHOUT COMPENSATION. Congress giving the right of way over public land for mining or agricultural ditches or canals, (14 Statutes at Large, 253, Sec. 9) there is no question of taking private property either for public or private use-the land being public land the Government has the absolute control over it. DISCRETION IN GRANTING PRELIMINARY INJUNCTIONS-PRACTICE ON APPEAL. The granting of a preliminary injunction by a District Court is very much a matter of discretion, and when it is granted on a complaint exhibiting a prima facie case, and there is no answer put in, and no showing made that any defense on the merits exists, the order will not be disturbed.

APPEAL from the District Court of the First Judicial District, Storey County.

It appears from the complaint that the plaintiff in constructing the "Seven-Mile Cañon Flume," from near the Mariposa quartz mill in Storey County to certain points in Lyon County, found it necessary to carry it over certain public land, near Booth's quartz mill in Storey County, in the possession of the defendant; that he proceeded under the State law to condemn the right of way, and had appraisers appointed, who valued it at $500; that he had tendered that sum to defendant, who refused to accept it; and that after such tender plaintiff attempted to carry forward his work, but was prevented by defendant. The plaintiff therefore prayed for an injunction, restraining the defendant from further interfering with the work.

The Court below, after hearing testimony, ordered a preliminary injunction to issue, and it is from that order that this appeal by defendant is taken.

R. S. Mesick and Williams & Bixler, for Appellant.

I. The injunction should not have been granted, because plaintiff never had possession, and the effect of the order is to transfer possession without trial of the right. (Bensley v. Mountain Lake Water Co., 13 Cal. 313; Decklyn v. Davis, Hopkins' Ch. 135; Lansing v. North River Steamboat Co., 7 Johns' Ch. 162; Hilliard on Injunctions, 294, 303.)

II. The Statute of 1866 purports to confer the right of taking private property for private uses, and is therefore unconstitutional.

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