Mahoney v. Nuttman

By the Court, Cükbey, J. This action was brought to enjoin proceedings <i of the Legislature entitled “An Act to allow,%meg,.$í. man, Marcus Harlow and their associates 'éhrassigné^to 'wrNstruct a toll road in the County of Sap.yíñiÉeO;,”.''ft'assgd1 s&t March, 1863. (Laws 1863, p. 99.) Upon'fijing théycom|^int^ a preliminary injunction was granted, and Syfi'n^;de^e the same was made perpetual. '

The portion of the Act on which the appellants allege the right to appropriate' the county road for their use as a toll road reads as follows : “ The right to construct and maintain a toll road in San Mateo County is hereby granted to James E. Huttman, Marcus Harlow and their associates or assigns, for the period of twenty-five years from the passage of this Act; said road to begin at the point of intersection where the present road crosses the northern boundary line between San Mateo and San Francisco Counties, and thence with said county road to the point where , the same intersects with the southern boundary line of San Mateo ‘County.” The parties were required, within a year after the passage of the Act, to open, grade and construct the road, to the width of at least thirty feet, and at all times to keep and maintain the same in thorough repair, taking and receiving for the use of said road from the public the tolls therein specified. Further, by the third section of the Act they were empowered to take, condemn and appropriate such lands as might be necessary for the construction of the road, or the right of way thereof, upon payment to the owners or claimants of such lands the ascertained value thereof, according to the provisions of the Act of May 20, 1861. (Laws 1861, p. 607.) Subsequently, in April, 1863, at the same session, another Act was passed, [344]entitled “An Act supplemental to and explanatory of an Act entitled ‘An Act to allow James E. Nuttman, Marcus Harlow and their assigns, to construct and maintain a toll road in the County of San Mateo, passed March twenty-fourth, eighteen hundred and sixty-three,’ which reads: ‘ That portion of section one of the above entitled Act, which reads as follows, to wit: Said road to begin at the point of intersection where the present county road crosses -the northern boundary line befo etween San Mateo and San Francisco Counties, and thence with said county road to the point where the same intersects with the southern boundary line of San Mateo County,’ shall not be so construed as to grant or confer any rights or privileges to the said James E. Nuttman, Marcus Harlow or their assigns, to construct, build or maintain a toll road over or upon the whole or any portion of the county road running through the County of San Mateo, from the northern to the southern line of said county, and known as the San José and San Francisco County Road; nor shall any part or parts of said Act be so construed as to authorize or empower the said James E. Nuttman, Marcus Harlow or their assigns, to charge- and collect any toll upon the whole or any portion of said county road; nor shall the said James E. Nuttman, Marcus Harlow or their assigns, acquire any rights or privileges under and by virtue of the above entitled Act to obstruct, in any manner or way whatsoever, the full enjoyment and free use of said county road, or any portion of the same, to the public.” (Laws 1863, p. 361.)