This is a suit to enjoin the defends ants from disturbing the plaintiffs in the enjoyment of their toll-gate on the bridge over the Wallkill, at the village of Montgomery, and to shut up the private road and bridge designated on one of the maps in the cause, by the letters R. O. J. L. M. N. K.
The following are the most material facts in the case % The plaintiffs were incorporated by an act of the legislature, passed the 20th of March, 1801, (sess. 24. ch. 36.) for the purpose of making “ a good and sufficient road, to run in the nearest, most convenient, and direct route, as far as circumstances would admit, from the village of Newburgh, on Hudson's river, to Cochecton, on the Delaware river.” The corporation so created was authorized to “ enter into and upon any land where they should deem it proper to construct the said road, and to lay out and survey such tracts or routes as should be deemed most practicable, for making a good and sufficient road between the places aforesaid.” But they were not authorized 41 to make the said road through any garden, without the consent of the owner, if such garden shall have been cultivated as such, at least ten years before such road shall be laid out.” And as soon as the plaintiffs should have “ completed the bridge over the Wallkill, where the said road should pass the same, it should be lawful for the corporation to erect a gate and turnpike upon and across said bridge, and to ask, demand, and receive, of and from all and every person and persons who should pass over and use the said bridge, one half of the tolls and duties,” &c. Provided, those inhabitants who resided within five miles of the said bridge, on either side, should be allowed to compound with the president and directors, by the year, for passing and using said bridge.” And there was a further proviso, “ that nothing in the act should be construed to entitle the corporation to demand toll of or from any person passing to or from public worship, on Sunday,” &c. And it was further.provided, “ that if any person or persons should, *107with his or their team or teams, carriage, or horse, tarn out -of said road, to pass any or either of the gates, on ground V , r J . . . ° - , -adjacent thereto, and again enter on said road, having passed the said gate or gates to avoid the payment of the toll due by the act, such person or persons should forfeit and pay a fine not exceeding 5 dollars,” Sic.
In pursuance of the provisions of this act, a turnpike road was duly laid out, inspected, and passed, and gates erected in 1804; and in passing through the village of Montgomery the road crossed the Wallkill, or, at least, on one side touched the Wallkill at, or very near the spot where the old bridge stood, and where the road had crossed it for nearly half a century before. The turnpike road so laid out and crossing the Wallkill, is designated on the map above referred to by the letters D. A. B. E. F. The road so laid out, appears to have been judiciously located, under the existing circumstances of the case, in 1804, and probably to the satisfaction and the best accommodation of the public at that time. There were difficulties and obstructions not easily to have been surmounted, in carrying the road directly on from the place on the map designated by R. or D., westerly, to the Wallkill; and the shortening the distance a few rods was of no consequence to the public.
A supplementary act was passed in favour of the plaintiffs, on the 28th of February, 1806, (sess. 29. ch. 29.) and before any new bridge had been erected by the plaintiffs over the Wallkill. By this act, the plaintiffs were authorized, when a good and sufficient bridge across the Neversink river should have been completed, to place upon and across such bridge a gate and turnpike, and to ask and demand one half of the toll and duties allowed to be demanded “ for passing a gate to be erected on the bridge to be built over tiie Wallkill.n The plaintiffs, in consideration of the toll to be taken on the Neversink bridge, were entitled to demand of any person “ passing the gate to be erected on the bridge •over the Wallkill river, when the same is built, only one half *108the toll and duties allowed to be demanded by the former act.”
It is to be observed, that this act was passed about two years after ti e road had been laid out nearly as it now leads over the Wallkill, and we áre to presume that location was well known to the legislature, it being a matter of public notoriety ; and this act was an implied recognition of that road, for the purpose of the bridge.
The bridge was made and finished, and a toll-gate established upon it, in 1809, and from that time to thecommencement of this suit, the plaintiffs have been in the exercise of the right to the bridge, and the toll-gate erected on it.
In 1810, the inhabitants of the village of M. were incorporated for local purposes ; and in 1812, the trustees of the village laid out, into streets and squares, the ground N. W. of the inhabited part of the village, and between it and the Wallkill.
On the 17th of March, 1815, (sess. 38. ch. 79.) another act was passed in relation to the plaintiffs, in which it was made “ lawful for the president, directors, and company to remove the toll-gate from off the bridge at the village of Montgomery, and to ask, demand, and receive, at, and from all persons passing the first gate west thereof, the same rate of toll, as for twelve and an half miles of the said road.” A similar provision was made in respect to the gate on the Neversink bridge.
The plaintiffs have not as yet availed themselves of this power to remove their toll-gate on the Wallkill bridge, and to increase their rate of toll at another gate, but in respect to that bridge, they have continued to exercise the rights and privileges conferred by the former statutes.
About the time of the passage of this last act, Benjamin Stars was the principal owner of the grounds so laid out by the trustees, to the N. West of the village, and he had it in contemplation to open a read and erect a free bridge over the Wallkill, at the place where the road and bridge, *109designated in the case as Fowler’s bridge, have been since made. There can be no doubt that the object of Mr. Sears was to increase the value, and to make better sales of the lots and grounds so lying to the N. W. of the village. After his death, his intentions which had been partly executed by him, were carried into full effect by Francis Fowler, with the countenance and assistance of the defendants and others; and about three or four years ago, the bridge complained of was built. Fowler obtained a grant from the defendants, who are trustees of the German church, on the 2d of February, 1818, for a strip of land three rods wide, from the bridge built by him, westerly, to the turpike road of the plaintiffs, and the grant was made expressly for the purpose of a public road. The words of the grant were, “ to use and occupy the same as a public highway, and not otherwise.’’ In May, 1818, the new road so laid out was declared by the commissioners of the highways, of the town of Montgomery, upon due application by twelve freeholders, to be a public highway. But on appeal to three judges of the Court of Common Pleas, according to the provisions of the highway act, the premises were inspected, and the allegations and proofs of the parties in interest heard, and the road declared to be unnecessary and inexpedient, and the order of the commissioners was annulled.
Upon these facts, connected with a number of circumstances in proof, (but which do not materially affect the question of right or of remedy,) the subject for consideration and decision is, whether the plaintiffs are not unlawfully disturbed in the enjoyment of their toll-bridge, and whether it be not a case calling for the interposition of this Court ?
I shall lay out of view, as altogether inapplicable to the question of right, how far the new road and bridge have an influence upon the value of property within their vicinity, and how far the extension of the village in that direction may be accelerated or retarded by the continuance or removal of the new bridge. If the road of the plaintiffs was *110laid out across the Wallkill, at the place where their bridge now stands, within the intent and meaning of the acts by _ which they were authorized to establish a road and toll-bridge, then the plaintiffs are in the enjoyment of a franchise or statute privilege, of which they cannot be devested by such considerations. Nor can the state or condition of either bridge, be a matter of any moment in the decision of this case, unless, indeed, the bridge of the plaintiffs was so far out of repair as not to afford a passage with ordinary convenience and safety. The evidence, however, does not warrant any such conclusion, and the statute of the 10th of April, 1813, (sess. 36. ch. 91.) affords a prompt and effectual remedy, if the case existed. It is enacted by the statute last referred to, that the commissioners for inspecting turnpike roads, whenever complaint is made to them that any turnpike road is out of repair, (and the bridge in question is to be taken as part of that road,) shall examine the road, and if they discover the road not to be in good repair, “ or shall find any of the gates placed in situations contrary to law,’’ they shall give notice to the Company of such defect or default, and if they do not immediately repair the defect, remove the gate, or throw open the gate, as the case may require, they are subjected to prosecution and penalty. It must be admitted, upon the view of this case, that the plaintiffs are in possession of a franchise granted by statute, and that the title to it has not been duly questioned ; and the only inquiry is, whether the new road and bridge be not a disturbance of it, by hindering or disquieting the plaintiffs in the regular and lawful enjoyment of their toll.
The bridge of the plaintiffs is part of their road, and the gate upon that bridge is entitled to equal protection with ány gate upon their road. Considering the proximity of the new bridge, and the facility that every traveller has, by means of that bridge and the road connected with it, to *111shun the plaintiff’s gate, which he would otherwise be obliged to pass, I cannot doubt, for a moment, that the new bridge is a direct and immediate disturbance of the plaintiffs in the enjoyment of their privilege. The quo animo is not an essential inquiry in the case. Whatever may have been the intention of the defendants, the new road and bridge do directly and materially impair the use and value of the plaintiffs’ franchise. It is a case, therefore, proper for the special interference of this Court, to relieve the plaintiffs from a great evil, or the necessity of incessant litigation with travellers. They bring themselves within the case of the Croton Turnpike Company v. Ryder, (1 Johns. Ch. Rep. 611.) and are entitled, within the doctrine of that case, to be quieted in the enjoyment of their right.
Where one has a grant of a ferry, bridge* or road, with the exclusive right of taking toil, the erection of another firry, bridge, or road, so near it, as to create a competition, injurious to the franchise,it is m respect to such franchise, a m?v the rival “estasanee. And this courtwill grant a perpetual in* junction, to secure the enjoyment of such statute franchise, and pre-*111There is some little difference between the parties, as to distances, in respect to the two roads, but the difference is so inconsiderable, as to become perfectly immaterial. Whether the road be not shortened at all, or from two to fourteen chains, in a distance of about three-fourths of a mile, can* not alter the rights of the parties. The distance may be lessened a few rods by the new road, but the proximity of the new road, and the proximity of the two bridges, is so close and striking, as to render the same a most palpable and immediate annoyance and interruption to the enjoyment of the plaintiffs’ toll-bridge. The new road, by its termini, and its vicinity, creates a competition most injurious to the statute franchise, and becomes, what is deemed in law, in respect to such a franchise, a nuisance. It was observed, in , the case of Ogden v Gibbons, (4 Johns. Ch. Rep. 150.160.) and shown to be a principle of the common law, that if one e 1 had a ferry by prescription, and another erected a ferry so e r * near it, to draw away its custom, it was a nuisance, for k . ' which the injured party had his remedy by action. The ° r J J J same law and remedy were applied to the case of a fair or ° 1 * market, in which an individual had a freehold interest, if *112another fair or market was erected or used within its vicinity. The same doctrine applies to any exclusive privilege created by statute: all such privileges come within the equity and reason of the principle; no rival road, bridge, ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration by which individuals are invited to expend money upon great, and expensive, and hazardous public works, as roads and bridges, and to become bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away by direct or indirect means, devised for the purpose, both of which are equally unlawful.
But it has been contended, that the plaintiffs were bound by the act of'1815, to remove their gate from the Wallkill bridge. The words of the act are, “ that it shall and may be lawful” for the president, directors, and company, to remove the toll-gate, 8zc. and to demand an increased rate of toll at the first gate west thereof. These words were applied to the trustees of a private company, and the better construction is, that it was intended as a matter of accommodation to the plaintiffs, to allow them to remove one gate, and increaste their rate of toll at another. The increase of the toll was intended as a compensation for the removal of the gate; hut the statute seems to have intended to leave it to their discretion, whéther or not they would avail themselves of"the permission. A peremptory and imperative interference of that kind, with a vested private right, is not to be inferred, when it is not expressly declared. Until the plaintiffs have accepted of the modification proposed, either by vpluntarily removing the gate from the bridge, or by demanding the increased toll at the next gate, all their former rights are to be deemed unimpaired, and as continuing in *113full force. Lord Hardwicke observed, in Stamper v. Miller, (3 Atk. 212.) that the words shall or may, when applied to private trusts, leave an election to the trustees, which is not the case when the words are used in acts of parliament. And in respect to statutes, the rule of construction seems to be, that the word may means must or shall only in cases where the public interest and rights are concerned, and where the public or third persons have a claim, de jure, that the power should be exercised. Thus it was held in Alderman Backwell's case, (1 Vern. 152.) that the Chancellor was bound to grant a commission of bankruptcy, on due application and proof, though the words of the statute were that he may grant. The creditors had an interest in the application of the power. Bo, in the case of the King v. Barlow, as it is reported in Salkeld, (for in Carthew the distinction is not noticed,) the K. B. construed the words shall and may, as being mandatory “ where the statute directs the doing of a thing for the sake of justice, or the public good.” In that case, (2 Salk. 609. Carth. 293.) the churchwardens were indicted for not making a rate or assessment, under the statute of 14 Car. II. ch. 12. sec. 18., for the reimbursement of some constables. The statute said, they “ shall have power and authority to make a rate,” and the statute was construed to be peremptory, and the constables had an interest in the exercise of the power. The Court observed in that case, that the stat. of 23 H. VI. said, that the sheriff may take bail, which was construed he shall. A similar decision was made in the case of the King v. Inhabitants of Derby, (Skinner, 370.) where it was said, that may, in the case of a public officer, was tantamount to shall. The illustration, in one of those cases, taken from the statute of 23 H. VI. was rather unfortunate, for the words of that statute were imperative. The sheriff “ shall let out of prison, &c. upon reasonable sureties,” Sic. But the principle to be deduced from the cases, is, that whenever an act to be done under a statute, *114is to be done by a public officer, and concerns the public interest, or the rights of third persons, which require the performance of the act, then it becomes a duty in the officer to do it. But that doctrine has no necessary application to a case like the present, where the power is conferred on trustees, upon their own application, as it is to be presumed, and who are not public officers, and where neither the public nor third persons have any rights, directly or immediately, concerned in the case. This is more like the case mentioned by Lord Hardwicke, of a power conferred upon trustees, for pur- ' poses of a private or personal nature; and at any rate, until the plaintiffs either voluntarily relinquish their gate upon the bridge, or are duly convicted by the judgment of a Court oflaw, of usurping or unlawfully holding that particular privilege or franchise, (and such a jurisdiction does not belong to this Court,) I shall deem myself bound to regard them as in the lawful exercise of a right.
The words tl shall or may,’’ in a private trust, leave ^ it optional with the trustees. The word M may,” in a statute, means must or shall on ly in cases where the public interest is concerned, and the public or third persons h-.ve a claim, dejuret that the pow- r should be exercised.*114The decision of the judges of the Court of Common Pleas is very material, (not indeed in respect to the rights of the plaintiffs, which it was not,in the power of the commissioners of highways to affect or impair,) but in respect to the justice and equity of the case. The judges, upon appeal, had a view of the ground, and heard the allegations and proofs of the parties, and they adjudged that the new road and bridge were unnecessary and inexpedient. This decision is evidence of the unreasonableness of the disturbance, of which the plaintiffs complain. They are now contending against a private road, which not only greatly annoys them in the quiet enjoyment of their privilege, conferred for beneficial purposes, and purchased for a valuable consideration, but which has been judicially declared to be unnecessary and inexpedient.
The plaintiffs are, accordingly, entitled to a perpetual injunction against the use of the road and bridgej opened by the aid of the defendants. The trustees of the German church are entitled to the land which was granted by them *115to Fowler ; for the condition of the grant has failed, and the title reverts back to them, and they ought to reclaim that land from the unwarrantable use to which it has been applied.
to damages and cost3‘With respect to the damages claimed by the plaintiffs, for the loss of toll, and with respect to the question of costs, the act of 1815 is entitled to consideration, ás having an influence upon those questions. I can easily suppose that the defendants acted under a misapprehension of right, when they lent assistance to Fowler, in the erection of the bridge, and made a grant to him of the road west of the Wallkill; and I think that the act of 1815 raised a fair presumption, that the plaintiffs intended to avail themselves speedily of the permission thereby granted. If it had not been their intention, it is difficult to perceive a motive for passing the act, for I have no doubt it was passed upon their suggestion. The plaintiffs, since that time, have not paid very vigilant attention to their bridge, and this must have strengthened the presumption. Nor does it appear that the plaintiffs, made any objection to Fowler’s bridge, while it was building, or gave any notice of their intention to oppose the use of it. Under all these circumstances, I am not inclined to make the defendants responsible for the loss of toll occasioned by the use of Fowler’s bridge. They have disclaimed all concern in the act of opening the road, after it had been closed by the plaintiffs. The damages must be very uncertain, and every thing that was said on that subject by the witnesses was mere guess and conjecture. I do not think the plaintiffs have laid a strong foundation for the assistance of this Court, in respect to damages, or shown any reasonable data, by which they might be accurately and safely assessed. The defendants have, likewise, shown too much colour of excuse, for -the assistance they afforded to Fowler, and the plaintiffs., have been too inattentive spectators of the formation of the bridge and road, during the long time that the business *116was going on, to justify me in punishing the defendants w'nh the costs of this suit.
1 he following decree was entered : “ It is declared that the plaintiffs are in the lawful possession of the gate and turnpike, erected upon the bridge over the Wallkill, and in the pleadings mentioned, and are entitled to the exclusive enjoyment of the toll, for passing the said bridge, given to them by the acts in the pleadings referred to, of the 20th of March, 1801, and of the 28th of February, 1806; and that the permission given to the plaintiffs by the act of the 17th of March, 1815, also, in the pleadings mentioned, to remove the toll-gate from the said bridge, was not intended to be compulsory upon them to remove the said toll gate, nor to impair their previous right to ask, demand, and receive toll at the said bridge, until they should, by their own voluntary act and consent, have removed the said toll-gate. And it is further declared, that the erection of the bridge denominated, in the pleadings and proofs, Fowlet ’s bridge, and the opening of the road therefrom, west of the Wall-kill, and leading to the turnpike road of the plaintiffs, enables persons travelling upon the road of the plaintiffs tó avoid the toll- gate, and to re-enter upon the road within a shorter distance than a mile from the place at which they had quitted it, and consequently the said bridge, denominated Fowler’s bridge, and the road leading therefrom as aforesaid, are an unjustifiable and unlawful interruption and disturbance of the plaintiffs, in the enjoyment of their statute right and privilege, to demand and receive toll as aforesaid. And it is further declared, that the defendants, by having afforded aid towards building Fowler’s bridge, and such of them as were trustees of the Reformed German church, by having granted land for the sole purpose of the said road, have been and are still contributing to the said injury to the plaintiffs. It is thereupon ordered, &c., that the defendants, and all persons by, from, or under them be enjoined, so long as the plaintiffs shall continue the toll*117gate on their bridge as aforesaid, from using, or suffering, or permitting to be used, as a road for public use or travel, Fowler’s bridge aforesaid; or the road there from, west of the Wallkill, and leading to and from the said turnpike road over lánd belonging to the trustees of the Reformed German church, and which land hath reverted to them upon failure of the condition upon which the same was granted by them to Francis Fowler. And it is further ordered, 8zc., that the said road last mentioned be forthwith, "upon service of a copy of this decree upon the said trustees, by them closed up so far as to hinder persons travelling upon the turnpike road of the plaintiffs, from using the same and Fowler’s bridge connected therewith, to the avoidance of the toll-gate aforesaid, on the bridge of the plaintiffs. . But inasmuch as it does not appear that the defendants acted with any fraudulent or malicious intent to injure the plaintiffs, in the lawful enjoyment of their rights, but rather from a misapprehension of their own rights in that respect: And inasmuch as the act of the 17th of March, 1815, afforded a reasonable permission, that the plaintiffs intended, in due season, to avail themselves of the permission thereby granted to them, (for otherwise that presumption was granted without any notice,) and as the plaintiffs do not appear to have made any objection or opposition to the new bridge and road, during the period the same were making, it is thereupon further declared, that the plaintiffs have not shown sufficient ground for the equitable interposition of this Court, to charge the defendants with the uncertain damages which the plaintiffs may have sustained in the loss of toll, or to charge them with the costs of this suit. It is thereupon further ordered, 5zc., that no costs of this suit be allowed to either party, as against the other.”