The opinion of the court was delivered by
Rogers, J.The Act of the 2d April 1811, incorporating the Union Canal Company, requires that wherever the canal shall cross a public or private laid out road, if necessary, the company shall build a bridge or make a ford and keep the same in repair. On the trial one of the matters in controversy was, whether this was such a road as imposed an obligation on the company to keep it in repair. After diligent search no record of the road can be found, and the inference is that none such now exists; but the court instructed the jury that, upon the facts in evidence, they were at liberty to presume that it was a public road laid out by authority of law, and that the record was lost; or they might presume that it was laid out by the owners of the soil and by them dedicated to public use; and in that event, if enjoyed by the public for twenty-one years, the company were bound to build the bridge and keep it in repair. Whether there was room for the first presumption is useless to inquire, as the exception is more particularly taken to the latter part of the instruction. On this point of the case we think the court was in error. For assuming that it was dedicated to public use by the owners of the soil, it *564is not a public or private laid out road within the fair construction of the Act. The Act has reference only to such roads as are laid out by authority of law, and of which, of course, a record is made, and cannot be made to include a road of the latter description, particularly in the absence of all proof that it had been treated by the officers of the township as a public road. A dedication, without more, imposes no duty whatever on the supervisors to keep the road in repair, and on that ground only can the suit be sustained by them against the company. If there was no obligation on them to repair the road, the payment was voluntary, which will not lay the groundwork of an action.
But admitting that the company was originally bound to erect the bridge, are the county to keep it in repair after the commissioners of the State, under the authority of an Act of Assembly, have laid out a State road over it? The company contend that by that Act they are absolved, and that the public, and not they, must keep the bridge in repair. And that would be reasonable, because it is just; for the conversion of a road, whether private or public, into a State road, increases the travel upon it and of course the expense of keeping it in repair; and this would be an additional burthen which we cannot suppose the Legislature intended to throw upon them, any more than would be the case if they had authorized a turnpike or rail road to be built over the same. In the latter case the injustice would be apparent, although in reality not more so than in the case in hand. We are therefore of the opinion that the location of the State road over the bridge, exonerated the company from the obligation further to keep it in repair.
Judgment reversed.