#### Carman *versus*Clarion River Navigation Company.

1. By act of May 21st, 1857, incorporating a company to improve Clarion River, they were authorized to collect tolls “ as soon as twenty miles are improved from the mouth, upward.” This improvement is a condition to the right to collect tolls, and a defendant sued for tolls may show that the right had not vested because this condition had not been complied with.

2. The act authorized the company to clear the river “ from all rochs, bars, and other obstructions, etc., ... to control the waters for the purposes of navigation . . . and to do all things necessary for safe navigation,” etc. Held, that if such improvements were made in good faith, whereby the hazards of navigation, etc., were lessened, the condition to take tolls was substantially complied with.

3. The officers had a discretion to exercise and do the best possible for the entire navigation, and were not obliged to expend more on the lower part than was necessary to put it into a reasonable state of improvement..

'March 30th, 1876.

Before A&new, C. J., Sharswood, Mercur, Gordon, Paxson, and Woodward, JJ.

*413Error to the Court of Common Pleas of *Elk*County, of January Term, 1876, No. 148.

This was an action of assumpsit, brought July 24th, 1873, by the Clarion River Navigation Company against Hiram Carman, for tolls claimed to be due by him for running his rafts of lumber on the Clarion River; if the plaintiffs were entitled to recover, it was agreed that the amount due was $416.60.

By act of March 21st, 1798 (3 Smith’s L., 320), Toby’s Creek (now Clarion River) was declared a public highway, etc.; by act of the 14th of April, 1828 (Pamph. L., 438), Little Toby’s Creek, a branch of Clarion River, was declared a public highway for the passage of boats, rafts, and other craft, and it was provided that the inhabitants desiring to use the navigation might remoye all obstructions, except dams, from the bed of the creek, and erect slopes, etc., at the dams.

By act of May 21st, 1857 (Pamph. L., 1858, p. 596), the plaintiffs were incorporated with a capital of $10,000. The company wás authorized to clear the Clarion River and Little Toby’s Creek from all rocks, bars, and other obstructions, and generally to improve the navigation by brackets, shutés, etc., and control the stream for the purposes of navigation, to levy tolls, etc., which should be a lien on the property on which they might be assessed, and might be recovered by action against the original owner, his agent, or the person in whose possession the property might, be, and upon judgment execution might be had of the property on which the tolls should be assessed, although the ownership might be changed after the commencement of suit. By section 12 of the act it was provided that tolls might be collected “ as soon as twenty miles are improved of the Clarion River from the mouth upwards.”

By section 13 it was provided that whenever the dividends from tolls should amount in gross to the stock actually paid in clear of all expenses and ten per cent, per annum, they should be reduced to an amount only sufficient for the improvement of said streams.

The case was tried November 18th, 1875, before Wet-more, P. J. .

*R. Rulofson*testified: “ I acted as manager to improve the river from State road to the mouth, forty-five miles; we commenced at State road; the managers, almost in a body, went, on very low water, down in skills, marking and passing judgment on the plans for improvement, arid asking the opinion of pilots, and on the basis of that judgment the work was done. Commencing at State road, I built a wing *414dam to confine the water and deepen the channel, it being a difficult place for low water; 1 then took out the rocks in part from there to Kidd riffle; there we built a wing to deepen channel, and took out a large rock, known as Proctor rock; at Kidd riffle we took out Horse-head rock, where rafts and boats stuck ; took out rocks through to upper Clarion bridge; we took out all rocks that obstructed boats or rafts in low water; at Clarion bridge we took out a large amount of rock and bar at mouth of the Little Toby run, and took out rocks and stone to Hoe run bar, keeping the channel as run by pilots; at Doe run bar managers let a contract for the improvement of that place to Phipps & Thompson ; I attended to contract and examined the work twice in very low water after it was done ; from that point some very big rocks were taken out to Piny eddy ; the work was done by Duncan, and I paid him; the next work was taking out rocks from there to Canoe riffle; but little required to be done; at Canoe riffle the channel was through the bar, the round stones picked out to deepen the chaunel; the work was continued from that point by Charles Oypliler and others. Cyphler agreed to take charge of the work from there to the mouth; he was directed to commence at that point, take all reasonable rocks from the chancel, take off bare, remove fish-dams from channel; take off the points of bars, and to remove all obstructions to. boats and rafts, as far as practicable. Wilson’s point was a place where work was done; we took off a very extensive bar, and took off the rocks and point, also deepening the channel and expending time and money to good advantage; the Turnip holes, a distance of a mile and a half, in which an immense amount of stone was removed, and channel made one hundred feet wide. Grass flats was very materially improved;, Mr. Boyd did the work here; we opened a left hand channel at lower end of Grass fiats, making a distinct and superior channel to the one we had always run ; the water was improved for one-fourth of a mile by removing all loose stones, and blowing and hammering off the fixed ones, so as to make the channel good and wide ; the lower left-hand channel is some distance below the other, and was created by opening lower end of bar; the other work consisted of taking out rocks and fish-dams, few being left as we found them; all of the work referred to was on the last twenty miles of the river; work was done continuously, except where there were eddies .or deep water; it is the most- rapid part of the Clarion ; I think there was not a mile in which there was not anything done ; where nothing was done it was deep water and did not need it; about two thousand dollars were expended *415under my management; over eleven hundred dollars were expended on last twenty miles of the river; some thirteen thousand dollars were expended in improvement of whole stream. . . . There was less danger in running on low water after than before the improvement.”

Other witnesses, who were lumbermen, testified that the work done on the river improved the navigation a great deal, and straightened it; that it was safer, and required less water to run rafts on it; that work was done on the lower twenty miles of the river; that .the managers had made an examination of the river, and carried out the work which they thought needed to be done.

For the defendant there was testimony that the work done had not improved the river ; that rafts could not run with less water than before.

The following are plaintiff’s points, and were affirmed:

1. If the navigation company, by the removal of rocks, bars, and other obstructions, and deepening the channel, made the navigation of the Clarion Fiver, for twenty miles upward from its mouth, safer, easier, or better in any respect than before, the plaintiff is entitled to their verdict. ■

2. If the jury believe that rocks, bars, or other obstructions were removed, or other improvements were made by the navigation company, in each and every mile of the lower twenty miles of the river, except some mile or miles of deep slack-water requiring no improvement, and such work was done in good faith for the purpose of improving the stream, their verdict should be for the plaintiff.

3. If the jury believe the work done by the navigation company on the lower twenty miles of the Clarion Fiver was done in good faith, with the honest purpose to improve the stream, then such improvement was sufficient, if. in the reasonable discretion of the president and managers it was all that was necessary and proper in view of their duty to improve the whole stream and the branches named in the act of incorporation, and in view of the limited means at their command.

The following are defendant’s points, with their answers:

1. The 12th section of the act of May, 1857, the charter of the plaintiff, is a condition precedent to the right of the company to charge or collect tolls.

This point was affirmed.

2. There must be a substantial compliance with the said • conditions previous to the levy of tolls, for the charter must he strictly construed.

This point was affirmed ; except saying that *“*the charter must be strictly construed.”

*4163. If the jury find that the navigation of the Clarion River, for twenty miles upward from the mouth, has not been substantially improved and materially benefited by the plaintiff company, and previous to the levy of the tolls for which this suit is brought, there must be a verdict for the defendant.

The third point is affirmed, but the substantial improvement and material benefit is limited to clearing the channel, or' parts of it, from rocks, bars, or other obstructions, or making the other erections directed by the act of incorporation.

4. Unless the navigation of the Clarion River, from the mouth upward for twenty miles, has been so improved that those using said river are safer in person or property, and the risk and expense of navigating said river lessened, the plaintiff’ cannot recover.

The fourth point is answered as follows:

The improvement required on the twenty miles from the mouth of the river upward is of the kind stated in the third section of the act of incorporation, and if any of the improvements there described were made in good faith under the direction of the company, and the hazards of navigation were therefore lessened, or the rafts or other lumber or boats in navigating said stream could pass along on less water than before the said rvork was done by the company, it was a compliance with the act of Assembly. With this qualification the point is affirmed.

5. If the j ury find that there is a single point within the' twenty miles from the mouth of said river upward which is. difficult or dangerous of navigation unimproved by the plaintiff, then the verdict must be for the defendant.

This point was negatived.

The verdict was for $416.60, the amount agreed on.

The defendant took a writ of error.

He assigned for error.

1-3. Affirming plaintiffs’ poihts.

4-7. The answers to defendant’s second, third, fourth, and fifth points.

*G. A. Bathbun*(with whom was *J. O. W.*Bailey), for plaintiff in error.

According to the answer to the first point, if the plaintiff' had removed a single obstruction the act of Assembly would be complied with. If there be ambiguity in the -word “ improve,” it is to be taken most strictly against the corporation; Commissioners *v.*Gas Company, 2 Jones, 320. The charter should be strictly construed ; the people had a right, by common law, to use this stream. The act of 1798 was merely declaratory of the eommon law: Barclay Railroad and Coal Company *v.*Ing*417ham, 12 Casey, 202. The act of incorporation, therefore, was in derogation of the common-law right, and should be strictly construed: Packer *v.*Sunbury and Erie R. R., 7 Harris, 218 ; Billings *v.*Providence Bank, 4 Peters, 514; Charles River Bridge, *v.*Warren Bridge, 11 Id., 521. All legitimate presumptions are in favor of the public against the corporation: Wolf *v.*Goddard, 9 Watts, 550; this being a private corporation : Rundle *v.*Del. & R. Canal, 1 Wallace, Jr., C. C., 275.

*J. G. Hall,*for defendants in error.

The legislature could direct any improvement, and by such agent as they thought proper: Rhines *v.*Clark, 1 P. F. Smith, 100; Bennett’s Br. Imp. Co.’s Appeal, 15 Id., 249. This was a public corporation: Clarke *v.*Birmingham Bridge Co., 5 Wright, 158; Downing *v.*McFadden, 6 Harris, 338; Monongahela Bridge Co. *v.*Kirk, 10 Wright, 129. Good faith is all -that is required of a corporation where, from the nature of the case, something is left to their discretion: Penobscot R. R. *v.*White, 41 Maine, 520.

Mr. Justice Gordon

delivered the opinion of the Court, May 8th, 1876.

The Clarion River Navigation Company was incorporated and organized under the provisions of the act of 21st of May, 1857. By the tenth section of that act the company was authorized to collect tolls as soon as twenty miles of the river, from the mouth upwards, were “ improved.” The defendant, upon whose lumber, run in rafts upon the above-named stream, tolls were charged, by the plaintiff, contends that the said company has not qualified itself under the statute to charge such tolls, in that it has not improved twenty miles of the channel of said river, from the month upwards. This is the true point of controversy, and the contention cannot extend beyond it, for, if it be admitted that the company is possessed of this franchise, there is an end to the defendant’s case, as then the question of the nonfeasance or misfeasance of the company would be pertinent only in a trial on a writ of *quó Warranto.,*As, however, the improvement referred to is a condition precedent to the right to levy tolls, it is clear the defendant might show that such right never vested by reason of a non-compliance with the terms of the act.

This question was, under all the evidence, duly submitted to the jury, but the defendant excepts to the Court’s answers on certain points submitted to it. There is none of these exceptions which have seriously impressed us except that taken on the answer to the plaintiff’s third point. That *418point reads as follows: “If the jury believe the work done by the navigation company on the lower twenty miles of the Clarion River.'was done in good faith, with the honest purpose to improve the stream, then such improvement was sufficient, if, in the reasonable discretion of the president and managers, it was all that was necessary and proper, in view of their duty to improve the whole stream and branches named in the act of incorporation, and in view of the limited means at their command.” This the Court affirmed.

At first blush, and standing alone, this answer seems to be exceptionable; for it would seem to make the discretionary powers of the managers absolute, and questionable only on the ground of *mala fides*in the exercise thereof, thus apparently negativing the vital point of inquiry, to wit, whether the company had actually improved the river or not. But upon a careful examination of the answers to all the points we cannot think that the Court thus intended to limit the controversy, neither do we think the jury could have so understood it. On any other hypothesis the answers to the defendant’s third and fourth points would be contradictory, if not wholly unintelligible. By them the Court were asked to instruct the jury that if they should find that the Clarion River had not been substantially improved and materially benefited by the company, so that the risk and expense of navigating it has been lessened previously to the assessment of the tolls on the defendant’s lumber, the plaintiff could not recover. These points were affirmed, with the single and proper qualification that the substantial improvement and material benefit made, on the twenty miles from the mouth of the river upwards, must be restricted, under the third section of the act of incorporation, to the clearing of the channel from rocks, bars, and other obstructions, or in making such erections and regulations as directed by the act, and that if such improvements were made by the company, in good faith, whereby the hazards of the navigation were lessened, or rafts or other crafts could pass along said stream on less water than before such work was done, it was a compliance with the terms of the act, and qualified the company to charge tolls. Now as this part of the charge, in express and unmistakable terms, puts the question to the jury on its true grounds, *i. e.,*the improvement or non-improvement of the navigation,*we cannot see how that body could be misled by the answer to the plaintiff’s third point. In this conclusion we are the more confirmed from the fact that the plaintiff"’s first and second points are based on the same general idea that the improvement of the river, in some substantial degree, was a condition *419precedent to a recovery of the tolls charged. In view of what has been stated, neither Court nor jury could have understood the third point to be intended for more than to develop the proper discretion of the managers as to the amount of the funds of the company which they might expend on the lower twenty miles of the river. It might be said that though the lower section was in some degree improved by the removal of rocks, bars, and other obstructions, yet that not so much had been done as ought to be done; in other words, that the funds of the company had not been properly applied to the improvement of this part of the stream; but to this the answer would be pertinent. The officers of this company have a discretion to exercise ; the- whole river and its branches are under their charge,.and they must do the best possible for the entire navigation. They are, therefore, not obliged to expend more upon the lower part of the stream than is necessary to put it in a reasonable state of improvement. We think this to be the true interpretation of this controverted point, and in view of all the instructions of the Court to the jury, we are satisfied that it worked no harm to the defendant.

The judgment is-affirmed.