DECEMBER TERM, 1838.

#### THE BUNCOMBE TURNPIKE COMPANY *v.*JAMES ALLEN.

The circumstance that a turnpike company were induced to lessen their rate of tolls inconsequence of the encroachments and illegal acts of the defendant, might perhaps be taken into consideration in an action on the case at law, but will furnish no reason for an account in equity for receiving or abstracting the plaintiff’s tolls.

The bill stated that the plaintiffs were incorporated by the legislature into a company to lay out a turnpike road 'from the Saluda Gap, through the county of Buncombe, by Asimile and the Warm Springs, to the Tennessee line, with power to take tolls for the travel on said road, not exceeding a table of rates set forth in the bill; that in laying out the road, they were necessarily compelled from the mountainous situation of the country, to run a few miles of the line of their road upon an old road, that had theretofore composed part of a turnpike granted by the legislature to two men by the names of Hoodenpile and Barnard ; that the privileges once grantéd to the proprietors of the latter road, had been forfeited as well by *non user,*as the omitting to comply with the conditions and stipulations contained in the legislative grant. The bill then stated that the defendant, pretending to be the assignee of the interest of Barnard in the old road, had also recently opened a new road, beginning on the Ten*116nessee line seventeen miles north of the western termination the old Hoodenpile and Barnard road, and joining that road west of that portion of the line where the plaintiff’s rUn ^nt0’anc® uPon the said old road ; that the defendant obtained from the legislature the privilege of collecting tolls on the travel over his new road, with a view to enable him to keep the same in repair; that the defendant, instead of placing his toll-gate across some part of his new road, so as to receive toll from those only who travelled over it, as in law he had a right to do, fixed his toll-gate across the plaintiffs’ road at that small portion of their line which run upon the old Hoodenpile and Barnard road. The bill then charged that by this conduct of the defendant, all the tra-vellers going east and west on the plaintiffs’ road, were compelled to pay, in addition to the tolls due them, a second set of tolls to the defendant, although they did not travel more than two or three miles on the old line of road formerly Hoodenpile and Barnard’s ; which small portion of road, the defendant pretended was his, as one of the assignees of Hoodenpile and Barnard, notwithstanding it was *kept*up *by*the plaintiffs as part of their long line of road; and that the defendant had received large sums of money from travellers on the road which he had no right to take. The bill then stated further, that the defendant not keeping his new road in repair (as he was bound as a condition of receiving tolls on that road to do), certain commissioners appointed by authority of law, removed the defendant’s toll-gate ; but that the defendant had again set up his gate, in contempt of the law, and still continued to exact tolls of all *the*travellei’s passing over the plaintiffs’ road ; that the plaintiffs’, in consequence of the defendant’s illegal acts, and the fear of the loss of travelling over their road, had been compelled to reduce their rates of toll one fifth less than they were authorized by their charter to take, and that their profits had been diminished at least twenty per cent. The bill prayed for an injunction to restrain the defendant from keeping up his gate on the plaintiffs’ road ; and also prayed an account of the tolls received by the defendant. 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 and Bar*117nard. He said that the plaintiffs run their road into his, against his will and consent-; that he had received no more tolls than 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.

The *Attorney General,*for the plaintiffs.

No counsel appeared in this Court for the defendant.

Daniel, Judge,

after stating the case as above, proceeded as follows: 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 the year 1831. The defendant having now no pretence 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 travellers according to the rates which they had established. The circumstance 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 cáse at law ; but it is no reason for an account in this Court for re*118ceiving or abstracting the plaintiffs’ tolls. The decree of his Honor is therefore affirmed with costs in this Court.

Per Curiam! Decree affirmed.