#### The Free Bridge Company *v.*John Woodfin *et al.*

■Where the legislature incorporated the plaintiffs for the purpose of building a bridge, and authorized them to collect such an amount of tolls, as was necessary to keep the bridge in repair, and the defendants erected another bridge in the vicinity over the same river, which diverted the traveling, it was held, that to entitle themselves to relief, the plaintiffs must show that their bridge was always in good repair.

The case made by tbebill answers and proofs was as follows: The legislature, by an act passed in the year 1832, incorporated the plaintiffs, and authorized them to build a bridge across the French Broad River in Buncombe, and to collect such an amount of tolls from persons passing it, as should in the opinion of Buncombe County Court be sufficient to keep it in repair. The bridge being at times out of repair, the defendants built one across the same river, which was entirely *free;*and thereby, as the plaintiffs averred, diverted the traveling from their bridge to such a degree, as prevented them from being reimbursed by the tolls, for the money which they had expended in repairing the bridge. The bill prayed an injunction to restrain the defendants from using their bridge.

The case was submitted by Hogg, for the plaintiffs, and *Gaston,*for the defendants.

Hall, Judge

The legislature, by the incorporation of the Free Bridge Company, had in view only the public good, not the private interest of the members who composed it. They therefore only authorized the collection of such tolls, as should be directed by the County Court, for the purpose of keeping the bridge in repair. Except for that purpose they have no authority to collect any thing. For the furtherance of the objects of the *114law. the plaintiffs have not made, out a *case,*that requires the interposition of this court. They state h; iaeir bill, that they procured an order of the County Court, authorizing a gate to be erected, and tolls to be collected. But they have neither produced a copy of such order, nor stated what tolls they were authorized to collect. They have not stated, nor given any *dala*from which it can be understood, what amount of money is necessary to keep the bridge in order for any given time. For aught that appears, the tolls collected are sufficient, or may be more than sufficient to keep the bridge in repair i altho’ the bridge erected by the defendants should be permitted to be used. .

With these circumstances another reason combines to place relief beyond the reach of the plaintiffs *;*and that is, that the bidclgc has not been kept in good and suffici-cient repair. If there was a necessity for another bridge, because the plaintiffs’ bridge was not kept in sufficient repair, it would be unjust to throw that bridge into disuse, when the plaintiffs thought proper to put their bridge in order. A toll bridge should at all times be kept in order, except for causes, which their owners cannot foresee and control. In the present case that has not been done, although the tolls which have been collected, or which might have been collected, are sufficient for that purpose.

The testimony taken in the case, without referring particularly to -it, establishes the fact, that the bridge at all times has not been kept in good and sufficient repair for the passage of travelers. For this reason, as well as for that before given, the bill must be dismissed with costs.

Per Curiam. — Biel dismissed.