now delivered the opinion of the court; *371] but Yeates, J. being a stockholder in the company, took no part in the decision.
This is an action of trespass brought against the superintendent of the artificial road, leading from Philadelphia to Lancaster, called the Turnpike Road, for entering on the cleared tilled and enclosed lands of the plaintiff, situate in the county of Chester, and digging up the said land for a certain distance, and overlaying the same along the route or track of the said road with stone and gravel, and for throwing down the inclosure or fence of the plaintiff over and across the said route or track, without having made any compensation for the said land, and for the injury done to his improvements.
The question turns partly upon the validity, and partly on the true construction of the act of assembly of the 9th April 1792, impowering the turnpike company to make this artificial road.
The validity of the act is impeached by its being repugnant to the constitution of Pennsylvania, which directs, that no man’s property shall be taken for public use, without his own consent, or that of his legal representatives, nor without compensation.
To this it is answered, that the road or track of the road running through the plaintiff’s land was not his separate property, for that he held it as a trustee for the public, under the grant of the late proprietaries of Pennsylvania, in which he was allowed beyond the quantity of land actually purchased and paid for, 6 per cent, for roads and highways.
This will lead us to consider the different kinds of lawful roads and highways in Pennsylvania. There are, and have been for a great length of time, three different kinds of roads : 1st, The great provincial roads, called in the act of 1700, the “king’s “highways” or “public roads,” which were laid out by order of the governor and council. 2d, The roads or cartways leading to such great provincial roads, laid out by order of the justices of the county courts, after a return of certain viewers, that the same was necessary for the convenience of the public; such parts of these roads as run through any man’s improved grounds were to be paid for out of the county stock. The 3d kind were called private roads, likewise laid out by order of the county court, on the application of any persons for a road to be laid out from or to their plantations or dwelling places, to or from the highway. The improved grounds through which these roads were run, were directed to be paid for by those, at whose request, and for whose use the same were laid out.
As to the first of these roads, called in the act the king’s highways or public roads, they were one of the objects of *372] what is * called concessions, made by the first proprietor William Penn, to those original purchasers in England, by whose *372assistance he expected to found the colony. By this instrument, dated the nth July 1681, it was agreed, that when the adventurers should arrive here, a certain quantity of land or ground-plat should be laid out for a large town or city, upon the river Delaware; that every purchaser should by lot have so much land therein, as would answer to the proportion which he had bought in the country. But previously to laying the dividends for each purchaser, it was directed, that the surveyors should lay out the great roads from city to city, or to great towns, as well as the streets in such great towns or cities. The grounds to be occupied by these great roads and streets, were evidently to be out of the proprietor’s lands alone. On the arrival of the adventurers in this country, it was found very practicable to lay out streets in one great city, which was accordingly done; but quite impracticable to lay out the great roads or highways from city to city, as only one city was then contemplated. But as such great roads were to be laid out over the land of the proprietor alone, and the purchasers were not to contribute, it was at length agreed and sanctioned by the early laws of the province, that in lieu of the impracticable plan settled in England, there should be an additional quantity of land granted to each purchaser without price or rent, to enable him to contribute without loss to such public roads as should thereafter be found necessary for the use of the inhabitants. In this plan there was evidently a chance, that the purchaser might be either a gainer or loser in the event, as it was then and would probably continue for a long time uncertain, how much of each man’s land would be found necessary for such public roads. The quantity of 6 per cent, was however fixed as the permanent quantity to be added to every man’s land for that purpose ; and from that early period to the present time, no grant has been made either by the proprietaries or the commonwealth, without this addition of 6 per cent, expressly for the purpose of contributing to the establishing the roads and highways. It is true, that it is not for these great roads alone, that they are to contribute, as but few of them are necessary; but, by the law of 1700, although a compensation is directed to be made for the improved land of any person, through which the second species of roads or cartways are run, yet as to the woodland or unimproved grounds there is no compensation to be made, evidently contemplating their liability to contribute on account of the additional 6 per cent, granted them to supply the roads and highways. Although in this early arrangement, there might be a chance that certain purchasers might *be obliged to contribute more than the 6 per cent. p,. to the roads, yet it might possibly have been foreseen, that [*373 scarce any instance of that would occur, without an equivalent likewise accruing to the purchaser, from the vicinity of such public roads to their buildings and improvements.
Even in the latter law, establishing private roads, the legislature appears to have contemplated the same liability in the pur*373chasers to contribute to the roads, the allowance to be made by those who use the road being expressly confined to the improved lands, through which such roads run, .considering, that though they ought to be paid for what by their labour they had made valuable, yet, as to the land which lay in a state of nature, they were bound to contribute as much of it, as by the laws of the country, were deemed necessary for the public convenience. If then as to these inferior kinds of roads, the legislature has sanctioned the original idea, can it be doubted, that with regard to the great provincial roads, being of so much more general utility, they should be exempted from a proportionable contribution ?
We cannot therefore consider the legislatures applying a certain portion of every man’s land for the purposes of laying out public roads and highways, without compensation, as any infringement of the constitution ; such compensation having been originally made in each purchaser’s particular grant. But it is objected, that even if the legislature might do this themselves, yet they could not grant the right of doing it to individuals or a corporate body for their own emolument, so as to deprive the inhabitants or travellers, of the free use of the road, by imposing tolls, or other restrictions in the use of it. To this it may be answered, that > such an artificial road, being deemed by the legislature a matter of general and public utility, and considering that it was not to be effected but at a considerable expence, and that the expence could not be defrayed, nor expected to be defrayed in the ordinary way, by the inhabitants of the several townships through which the road was to run, they devised this mode of accommodating the public with such a road at the ex-pence of private individuals, who from a prospect of deriving some small profit to themselves, might be induced to do it; it was immaterial to the public whether it was done by a general tax to be laid on the people at once, or by the gradual payment of certain specified sums by way of toll on those who used the road only, the latter being considered as the most equal mode of defraying the charge of making and keeping such road in repair. For although every man has a right to the free use of a public road, yet every member of the community may be taxed for *making that road, in any manner that the legislature *374] may think reasonable and just.
There has been great difference of opinion at the bar, as to the 9th section of the act. I have not been without my doubts, but have at length satisfied my mind as to the construction of it. The words, in, over, contiguous, and near, to the route and track of the intended road, appear to me to include both the track of the road, and the adjacent lands ; and that the words, repairing the breaches they make in the inclosures thereof, and making amends for any damages that may be done to any improvements thereon, likewise relate to both; but may be satisfied without obliging the company to erect new fences on each s-ide of the *374road. The general breaches of inclosure would certainly be in cases, where the fences run across the intended road, and these could not be re-erected. But there might be a necessity for taking down fences that run lengthwise along the track of the road. It not having been unusual in running roads and laying out townships, in order to avoid as much as possible the doing injury to the neighborhood, to run the roads in the line of two neighbouring tracts, the legislature might reasonably suppose such instances might occur in opening this road; and it was therefore proper to oblige the company, to re-erect the fences by the side of the road. The word, repairing, seems not to carry the idea of new erections, but restoring what had been prostrated.
Cited in 5 Watts 547 in support of the decision that an incorporated turnpike company have the right to dig stone, clay, and gravel, within the limits of its road, for its improvement and repair; and are not thereby subject to an action by the owner of the land. Cited in 3 Wh. 514 to show that a turnpike is a public highway.In opening other roads, public and private of any length, it could scarcely be avoided in many instances to lay open in closures ; but it has never been contended, that either the county or private petitioners were obliged to repair them, by erecting new fences on the sides of the roads. The members of the legislature must have known this, and would therefore if they had meant it in this case, have provided for it in express words. The truth is, that it has been considered, that the running of a road through a man’s land, confers such a benefit on him, as fully compensates him generally, for the expence of fencing his land anew.
I observed before, that the words, in, over, contiguous and near, to the track of the road, extended as well to the road itself, as to the adjacent ground from whence the materials were to be procured, and to the damage done to the inclosure; so likewise I consider it to extend to both, as to making amends for any damages done to the improvements thereon. " And if it has in any case been found necessary to pull down houses, destroy orchards, or spoil grain in the track or route of the road, the company are undoubtedly bound to make compensation to *the owners, as well as the adjacent grounds from whence they are to collect the material. In the present case no [*375 such damage is found. And on the whole case, it is our unanimous opinion, that judgment should be entered for the defendant.
Brackenridge, J.subjoined, that it ever had been his decided opinion, that in all cases of roads laid out by order of the county courts, where they had been carried through a man’s improved lands, the soil of the land was not to be” valued and paid for either by the county or the petitioners, but merely the improvements. This appeared clear to him ex vi termini; and no valuation is to be made of woodland.
Cited in i W. & S. 351 to show that the legislature has the constitutional right to grant to individuals or to a corporate body the right to appropriate a portion of every man’s land, for the purpose of laying public roads and highways, without compensation, such compensation having been originally made in each purchaser’s original grant. Cited for the same purpose in 30 Pa. 370; 100 Pa. 366. Referred to and distinguished in 20 Pa. 96. Cited in 119 Pa. 564 as containing a statement of Penn’s Concessions of 1681. Since the passage of the act of April 7, 1849, a plank road company is bound-to provide fences along the sides of their roads. Plank Road Co. v. Ramage, 20 Pa. 95. See also Plank Road Co. v. Thomas, zo Pa. 91.