The opinion of the Court was delivered by
Sergeant, J.On the principal subject of contest in this case, whether the Turnpike Company, under the Act of the 30th of March 1811, possessed the right to erect toll-houses at their gates for the accommodation of the toll-gatherers, within the space of 50 feet comprised by the lines of the road, we entertain no doubt. We are of opinion, that although not expressly mentioned, it is a power that necessarily flows from the provisions of the Act of incorporation. It is not easy to see how the business of collecting the tolls, and performing other duties at the gates, could be conveniently conducted without houses for the accommodation of the toll-gatherers, especially as it has been decided, in Turnpike Company v. Brown, (2 Penn. Rep. 462), that the only mode of collecting the tolls, is to demand and receive them at the gates, and they cannot be recovered by action. The company are expressly authorized and required to appoint toll-gatherers to attend at the gates to collect and receive the tolls appointed, and their constant attendance at all hours, and at all seasons, is indispensable for the accommodation of the public in passing along the road. And this cannot be properly done without houses there to shelter them and their families. It is true the company has the power to purchase ground adjoining the road from the owners; but it would not be so convenient for travellers and the public, to have the toll-gatherer’s residence remote from the road -, and the ground might be refused or set at an exorbitant price, and, moreover, would be a needless expense. For gates cannot be erected without obstructing the road by a fence or bar across, so as to compel travellers to turn up and pass through the gates, and that portion might as well, so far as respects the use of the summer roads, be occupied by a building as by a fence or bar. It has, we believe, been the constant usage on our turnpikes, to erect the toll-houses at the gate, within the road, so as not, however, to interfere with the stone or gravel part of the road. The adjoining owner is not thereby deprived of any useful right, since the whole 50 feet, and even more, were long since laid out by the commonwealth as a *552great public highway in the first instance, and afterwards authorized to be turnpiked. The commonwealth had unquestionably a right to grant this power expressly, and might do so impliedly, as necessary to the taking and enjoying the things granted. What is said on this subject in Fisher v. Coyle, (3 Watts 407), and was the authority that governed the court below in the present instance, was not the point of that case. The decision there was, that the right of the company to build a toll-house within the road for the occupation of its toll-gatherers, would not justify them in renting it for other purposes unconnected with the road; and in this we entirely concur. But so far as such houses are for the accommodation of the toll-gatherers themselves, they stand on different principles. This very point came up in the Supreme Court of Massachusetts, in the case of Tucker v. Tower, (9 Peck 109); and no authority to the contrary has been produced. The courtr there held, that without any express authority in the Act, the Turnpike Company may place a toll-house at or near the gate, within its limits, for the accommodation of the toll-gatherer, provided the highway be not too much straitened. The court say, a house thereon for the residence of the toll-gatherer, is certainly within the reasonable purposes and intent of the legislature, to prevent the delay to passengers which would occur if his dwelling-house should be at a distance. No authority was given by the A.ct to appropriate any land without the exterior side lines of the road, so that if the proprietor of the adjoining land should refuse to sell a house-lot, or demand an extravagant price for it, the company and the public might be put to great inconvenience. The owner has the right of soil, but it is subject to the easement taken for the public use, and it is necessary to the enjoyment of the easement that there should be a toll-house. These remarks apply to the case before us, and we fully concur in them.
The supplementary Act of 1840 must therefore be considered as merely an Act to explain the doubts that had been entertained, and not as doing away the legitimate effect of the Act of 1811. It contains, moreover, new restrictions as to the mode of subsequently exercising the right by the company, so as not to prejudice the public or individuals.
This decision renders it unnecessary to examine the other questions presented, it being unimportant whether the plaintiff was to be considered in the actual possession of the locus in quo or his lessee, or as to the direction on the subject of damages.
Judgment reversed, and venire facias de novo awarded.