#### Griffen *against*House.

1'he act m corporatmg the *Columbia urnptfce*road, leading to the *Massa'*-distance1TM?'any t^rect’thé *•mosimstmardiy*turnpike gate on the road, “at a place *near the Ma$*as the president shouMdteS.” mu gate'elect* vwo'miles'and aj^fntquafoTM the *Massachu-setls*was not placed within the actTan^that*, fedo^hés a-StEerer,6‘“at p^ontoffrom \vhom ,he, has, received toll, at such gate, to recover back unlawfully de-received. and

whérea"p¡>wer lurfptke *elm-foli-gates*wfth-mitsCea?inthe¡r discretion, has , been one exercised, it is at an end; and the company cannot, without some strong and manifest necessity, change the local situation of the gates which have been once erected, merely to suit their own convenience.

IN ERROR, on *certiorari*to a justice’s court. *House 1 J*brought an action of *assumpsit*against *Griffeh,*in the Court below, to recover back money demanded and received of him by *G.*a toll-gatherer at the easternmost turnpike gate, on the *Columbia*turnpike road, on the ground that the toll was illegally exacted, in consequence of the gate having been erected at the place where it stands, illegally, and without any authority for that purpose. By the third sec-*J ** 1 1 . J*tion of the “ act to amend an act, entitled an act to esta- , ... . , , blish a turnpike corporation lor improving the road from the city of *Hudson*to the line of *Massachusetts,*on the route to Hartford,” (sess. 23. ch. 69. 2 *K.*& *R.*400,) the most eastwardly turnpike gate on that road is directed to be “ at such place near the *Massachusetts*line aforesaid, as the president and directors, &c. should direct.” It appeared at the trial before the justice, that the *easternmost gate,*at which , . , . , ... ’ (r. had demanded and received the toll from *H.*was situated just west of the place where the road from old *Tagh-hanic flats*to *Hudson*intersects the said turnpike road, which is about two miles and three quarters from the *Mas sachusetts*line; that after the turnpike was finished, the first gate erected near that line, was at a place one mile and three quarters west of the *Massachusetts*line : that, after-wards, the gate was removed farther east, to a place about •IT . 1 one mile distant from the line between this state and *Massachusetts.*After some years, the company removed the gate to the place where it now stands, and where it has ever since remained; being not more than six miles distant from the gate next west. It appeared that the whole length of the road is about nineteen miles and a half. The justice gave judgment for the plaintiff below.

*398*Per Curiam.*

It was undoubtedly intended by the legis-]ature t0 vest jn the president and directors of the company some discretion, in fixing the easterly gate ; but it was tobe *near*the *Massachusetts*line. This is a relative term, and regard must be had, in construing the act, to the length of the road, which is about twenty miles. In the case of the *People*v. *Denslow,*(1 Caines, 180.) this court decided, that a gate placed at the distance of eight chains and fifteen links from the house *oí John Van*Hoesen, was a legal exercise of the power granted by this act requiring such gate to be near his house. But there must be some limit to the discretion given, and we are clearly of opinion, that considering the extent of the road, a gate two miles and three quarters from the *Massachusetts*line, is not placed *near*that line. We are, also, inclined to the opinion that where the discretion has been once exercised, the power is exhausted; that it cannot be revested, so as to authorize the company to change and move the gate, to suit their convenience, without some strong and manifest necessity to warrant it. Here the company have acted capriciously, and have lost sight of.the trust reposed in them, by changing, several times, the location of the *easterly*gate, contrary to their first opinion, and without any apparent necessity for it. The judgment must be affirmed.

Judgment affirmed.