concurring.
The Savannah, Albany and Gulf Railroad Company erected a bridge for their Railroad, across the great Ogechee, “ within five miles-’ of the toll bridge of the plaintiffs in error.
The charter of the company said what was equivalent to saying, that they might erect this bridge.
The fifth section of the Act of 1806, authorizing the erection of the toll bride, has these words: “it shall not be lawful for any person or persons, at any time or times, to build any bridge, or keep any ferry, on the great Ogechee, within *461five miles, either above or below the said bridge,” (the toll bridge,) “ which is hereby exclusively vested in the said Joseph Hill, his heirs, and assigns.”
The second section had given to Joseph Hill, his heirs and assigns, the exclusive privilege of erecting the toll bridge.
The fourth section gave him the right to receive “ a toll equal to that,” theretofore, “granted to” “Wade Hampton and James Gunn.”
The toll granted to them was, “for every loaded wagon, and other four wheeled carriage, four shillings and eight pence; for every empty wagon, two shillings and four pence; “ for every loaded cart, or other two wheeled carriage, two shillings and four pence; for every empty cart, or dray, one shilling and two pence; for a man and horse, six pence; for a a foot passenger, three pence ; for all black cattle per head, three pence; for hogs, sheep, and goats, two pence; for every rolling hogshead with two horses, and drawn, one shilling and two pence; for every rolling hogshead with one horse? and drawn, one shilling and no more.” Watk. Dig. 420.
The question may be stated in general terms, to be this : Have the plaintiffs, the owners of the toll bridge, a right to sue the Railroad Company, for the erection of the railroad bridge ?’
The Court below held that they have not; and I think, that it held right.
[1.] Grants of monopolies from the Legislature, like the grant contained in the Act of 1806, are to be construed strictly, so as to make them convey as little as possible.
This Court, speaking of this very grant, said, that such grants are to be strictly construed.” McLeod vs. Burroughs, 9. Ga. 221.
These grants from the Legislature, occupy in our lawy much the same place, which, grants from the King, occupy in the English law; and they must receive much the same construction. “ By the” (King’s) “ grant of all mines in such a soil, altho’ the grant be ex certa scientia et mero motu, *462mines royal of gold or silver, shall not pass, but the words, (soil and mines,) shall be taken in a common sense; and to a common intent; but to have them pass, there ought to be special words.” 1 Coke 46. The case of Allin Woods.
According to this, the words, “ any bridge,” contained in the grant of 1806, are to “be taken in a common sense, and. to a common intent.” Taken in this manner they will no more include a railroad bridge, than will the Avords, “ all mines,” taken in this manner, include gold or silver mines. In 1806, when the Avords, “any bridge,” were used, railroads and railroad bridges Avere unknown. It is therefore, impossible, that the legislature, in using the words, “any bridge,” could have had railroad bridges in their mind.
I think, then, that the words, “ any bridge,” in the Act of 1806, do not include railroad bridges.
[2.] But, if I though they did, 1 should still think the plaintiffs not entitled to sue the defendants, or, at least, not entitled to recover of the defendants, more than nominal damages.
A toll bridge is a public highway over which, every body, with his goods and vehicles, has the right to pass. If there is a toll laid on him, or on his goods, or on his vehicles, he cannot pass without paying toll; if there is no tóll laid on Mm or on his goods, or on his vehicles, he can pass without paying toll.
In the case of the present bridge, a man could pass the ' bridge, toll free, Avith a drove of mules or horses, or with camels, or elephants; or riding in a sleigh, or in a one wheeled carriage, for on none of these things is any toll imposed.
So, I suppose, for the same reason, the army, horse, foot, and artillery, could pass toll free.
In a word, every thing could pass; and every thing on which, no toll Avas laid, could pass toll free.
This being so, a railroad car, with its load of passengers, or freight, would have the right to pass the bridge toll free, for no toll is laid upon the passage of such a car. True, a *463railroad car might find some difficulty in getting to, and over, the bridge ; but this does not affect the right; and, besides, a time may come, and, in the opinion of many persons, will come, when the steam engine, with its train of cars, will be seen running on the common roads.
But if this be so, then it can be no injury to the bridge, that railroad cars do not pass over it, but pass the river else, where; it must be a benefit; it must be the means of sawing the bridge, from much wear and tear, if not, from destruction, under the mighty weight of the strange engines and cars.
The case stands thus: The Railroad Company have the right to cross the toll bridge with their engines, cars, &c. toll free. They do not choose to insist on this right, but choose' to cross on a bridge of their own; — Can the owners of the toll bridge sue the Railroad Company for pursuing this, course ? If they can, surely, it cannot be, that they are entitled to recover more than nominal damages.
I think the judgment of the Court below ought to be affirmed.
McDonald, J. dissented.