The Court is of opinion that the judgment should be affirmed. As the case is stated, it seems to have been the object of the suit to recover the one-third of the toll which, according to the resolutions of the company, was demandable at the middle gate, if the defendant had passed through it; but the claim, in that form, is not sustained by the facts, since the defendant did not pass through that gate, nor, indeed, enter the road until he reached Asheville, which is to the east of that gate. As he did not use the road west of Asheville, it would seem the defendant could not, upon any principle of justice, be chargeable for toll between the gate near that place and the western termination of the road. It was admitted in the argument that such is the law in respect to a person who, bona fide, came to Asheville, in the first instance, on business at that place, for example. But it was contended that the defendant practiced a fraud upon the company by traveling his way in the immediate vicinity of this road until he got beyond the middle gate, and then entering the road, because, thereby, he avoided paying two-thirds of the toll and was enabled to use one-half of the road upon paying one-third of the toll, if he went to the third gate, and without paying anything if he went of the road before getting to that gate. The Court, however, cannot view the subject in that light. By refraining from going on the turnpike between Tennessee and Asheville, the defendant (33) was guilty of on fraud on the company, but was only exercising his own legal right. The law compels no one to use the road, but only gives the company the right to a toll from those who do use it. Every one is free to travel such ways as he may choose and find; and it is naturally to be supposed that he will go on those which are common, unless he find it to his advantage to travel on the turnpike, even at the expense of the tolls. Then the defendant neither used the road nor was bound to use it; he incurred no liability for tolls at the gate *Page 36 west of Asheville or between it and Tennessee. If, indeed, the defendant had traveled the road from the Tennessee line to Asheville, going off, when near a gate, and re-entering the road on the other side of the gate and out of sight of it, as a trick to avoid paying tolls by not passing through the gate literally, while he had the benefit of the road, the consequence might, perhaps, as it seems manifestly just that it should, be different. But here that point does not arise, as the defendant was not on that part of the road at all, and it could not be the intention of the act that the citizen should, in any case, be liable for tolls in respect of a section of the road on no part of which he traveled. Up to the middle gate, then, we think that the defendant did nothing on which a demand for tolls arose to the plaintiff.
It was, however, contended further that tolls pro rata are due for the distance which the defendant actually traveled, and that the jury should have been allowed to apportion them. It would seem to be a sufficient answer to that position that the plaintiff did not ask to have the case thus put to the jury, as the claim was specifically for the tolls demandable at the middle gate, namely, one-third of the whole tolls. But without adverting to that matter, we think that the company cannot apportion the toll, so as to recover in an action what they could not (34) demand on the road on pain of refusing passage to the traveler; for, although it be generally true that indebitatusassumpsit will live for the value of a benefit derived by one from the labor or property of another, yet the present case is unaffected by that principle. The demand of the plaintiff is not one of the kind supposed. It is not founded on a quantum meruit or quantumvalebat, but it is for certain specific tolls, which are demanded by virtue of a grant of the franchise to the plaintiff as a corporate body. The tolls cannot, on the one hand, be diminished by showing that they are more than a just compensation for the service. So, on the other hand, no higher or other compensation can be claimed than in the form of the tolls granted and demandable and payable at the places and in the manner specified in the grant. The question, therefore, turns upon the terms of the charter, and from the parts of that instrument set forth in the case it seems clearly to have been the intention of the Legislature that the company should not be entitled to claim tolls but at the gates and toll houses erected for that purpose. The grant is that tolls may be demanded at convenient gates, which are to be situated the pleasure of the company, provided that one shall not be erected within three miles of Asheville, and that one gate is not within ten miles of another; and there is no authority expressed for taking tolls *Page 37 at any point between two gates. Indeed, the implication is strong that tolls cannot be demanded at such intermediate points. The express provisions quoted, that tolls may be exacted at tollgates and that the gates shall not be within ten miles of each other, of themselves create that implication. It would be most inconvenient that a traveler passing a few miles along the road, who finds no person on it to whom he may make payment, should be subject to an toll for that distance, since, upon the general rule, he would be obliged to seek his creditor, the officer of the company, where he could be found, and make payment or be subject to an action and its costs. (35) The meaning is that the tolls should be paid on demand, at certain points on the road, as they arise, and in order to give notice of those points the charter requires that they should be "designated" by "convenient tollgates." Furthermore, it is to be observed that the tolls payable at each gate are not in proportion to the distance the party may have traveled or may intend to travel along the road. Provisions of that kind would give rise to innumerable frauds and controversies. On the contrary, the tolls are to be apportioned according to the distances at which the tollgates are from each other. It was only after the road was made for ten miles that a gate could be erected; but, after it was erected, one-seventh of the whole toll was demandable at that gate, without reference to the inquiry whether the person came over all or only one of the ten miles, and the same rule is declared as to the proportion of tolls for any greater extent of road. Hence the tolls are not only demandable at the gates, and there only, but they appear to be given for passing through the gates respectively. If, for example, a traveler come to a gate, and be refused a passage because he cannot or will not pay the toll, there is nothing to prevent his turning back without making any payment. The charter is express that the road is a public highway for all persons who pay the tolls imposed, and hence there can be no pro rata toll demanded where there is no gate. That is further deducible from the clause which forbids the erection of a gate within three miles of Asheville, which could have been inserted only upon the idea that no toll was due but at and passing a gate, and was no doubt intended, upon that supposition, to afford the opportunity to all persons, without paying toll, to go on the turnpike far enough to reach the several common and free roads which branch off east or west from it within that distance. The (36) inference is plain that one who does not pass through the gate, but goes out of the road between two gates, is not liable for any toll. Such, too, as we are informed by the counsel on *Page 38 both sides, has been the construction of the charter which has been acted on by the company throughout its existence, this being the first instance in which a claim has ever been set up for a pro rata toll for passing from one point to another on the road between which there was no gate. This construction produces but little loss to the company, as they have it in their power, if found to be worth the expense, to increase the number of gates to seven. That number would be sufficient for all the purposes within the purview of the act, as the inhabitants of Buncombe, who alone may be expected frequently to travel short distances on the road, are entirely exempted from tolls, and the Legislature did not mean that other travelers should be harassed with the delays and vexations at turnpike gates oftener than every ten miles; these gates, however, are about thirty-five miles apart, and it was consequently the effect of the plaintiff's own omission that the defendant was put under no obligation to pay tolls for the portion of road over which he passed.
PER CURIAM. Judgment affirmed.
(37)