The opinion of the court was delivered by
Barrett, J.The declaration sets forth such a right in the plaintiffs, as the deed of Jarvis to them of June 3,1862, purports to grant and convey; and it alleges acts on the part of the defendant in direct and intended violation of that right. The evidence maintains those allegations. The plaintiffs are a corporation under a charter granted by the legislature of New Hampshire, giving them the right to construct and maintain the toll-bridge in question, and to demand and receive the prescribed tolls from all persons passing over said bridge. But the charter does not in terms confer any further right in this respect. It contains no provision looking to the compelling of persons, by legal requirement, who *736may have occasion to cross the river at or near that place, to pass over on said bridge, or to the restraining or in any way hindering them from crossing by any other means than said bridge.
So far then as the law existing by the terms and force of the charter is concerned, nobody is under any legal obligation to use the bridge in crossing the river, or to refrain from passing, over by any other means; and clearly the plaintiffs have no claim for toll upon anybody, except such a's in fact cross over on their bridge. By the mere fact of crossing the river on the ice to avoid paying toll, no right of the plaintiffs conferred by the charter was violated by the defendant. Whether then the plaintiffs can maintain this action depends on the operation and effect to be given to said deed of Jarvis to them. In the first place, it is claimed that the plaintiffs, by reason of being a foreign corporation, cannot acquire by deed rights in, or in respect to, land in this state. We regard that matter, as involved in cases of this kind, to have been settled, and upon solid ground in the law, in the case of the State v. B. C. M. R. R. Co., 25 Vt., 433. Every reason for holding, as was held in that case, seems to us to have increased force for holding the same doctrine in behalf of a foreign corporation like the plaintiffs, the purpose of which is to make and maintain a bridge for common travel between neighborhoods, towns and states separated by such a stream as the Connecticut river; such bridge being quite as serviceable to the convenience and interests of the inhabitants of Yermont as of New Hampshire. . -
In the next place, it is claimed that the deed of Jarvis is ineffectual to convey to the plaintiffs any such right as they assert and seek to stand upon in this case. It clearly would have been the right of Jarvis, if he had not given that deed, by virtue of his being the owner of said four acres, to have obstructed by fences and bars, or to have prohibited without fences or bars, such persons as he might choose from passing over that land between the highway and the edge of the river. In the exercise of that right he might have prohibited some and permitted others; and he might have made the distinction for the same purpose and reason, and have made his prohibition upon the same persons, as were contemplated by his deed to the plaintiffs. The interest and right granted were to *737be held by the plaintiffs with all tbe privileges and appurtenances thereof to their own use and behoof forever, with the usual covenants of warranty. This, as between the parties to the deed, ' would give the plaintiffs just as ample a right, for the purpose named, as Jarvis himself had; and in the exercise of that right it would have been competent, for the accomplishment of that purpose, to have made and maintained any kind of fence, or wall, or other structure, or any embankment or ditch around, or upon the land described in said deed. We think such aright and interest is the subject of grant and conveyance by deed as an interest in land.
If the plaintiffs had owned the entire property and estate in said four acres, as Jarvis did before his deed to them, it cannot be doubted that they would have as much right and more reason than he had to control and obstruct travel over it for the purpose of avoiding the payment of toll.
' There seems to us to be no ground, on the score of public or state policy, for denying to the plaintiffs the exercise and enjoyment of that right to the fullest extent for realizing the purpose for which it was purchased and granted. The construction and maintenance of such a bridge is a public work, and in the service of the public necessity aiid convenience to such an extent and in such a sense as to justify and even to require the exercise by the sovereign power of the state of its right of eminent domain, and to call upon the legislature to invest the corporation with special. rights and privileges, with a view and for the purpose of encouraging individuals to undertake such enterprises, by making provision for their getting a reasonable reimbursement for their outlay, and a reasonable compensation for their labor, hazards and losses. It is morally rightin the eye of the law, therefore, for the plaintiff's, by the exercise of any right they may have in respect to the contiguous land, to secure, as against evasions by whatever motive prompted, a fair use of their bridge for the purposes designed by it, and as the result of which use alone they can realize a just return for their efforts and outlay. It is shown by the case that the defendant was using the bridge to draw over from Vermont to a market in New Hampshire his loads of wood, and then with his *738empty sled was making Ms return crossing on the ice to avoid paying toll. After having done this in many instances, and once certainly having taken down the bars and cut down the bar-posts, the plaintiffs, on replacing said posts and bars, forbade the defendant to pass over said piece of land and out through said bar-way. The defendant did not heed this, but he passed on and tore down the bars and went through into the highway and on home. For this last act this suit is brought.
The declaration does not count on the right of the plaintiffs to have toll of the defendant, nor on a duty of the defendant to pay toll, nor on the loss of toll by this act of the defendant to which the plaintiffs were entitled: but it counts on the right of the plaintiffs, by erecting and maintaining a bar-way and bars, to obstruct travel over that piece of land for the purpose of avoiding the payment of toll. It is the violation of that right that constitutes the cause of action declared upon, and for which the recovery of damages is claimed; and it is for such damages — as agreed by the parties — that the judgment was rendered. We think that such a right existed in the plaintiffs, and that a violation of it, as set forth in the declaration, is shown by the facts proved, and that therefore the present action is a proper one for the recovery of the damages ensuing therefrom.
The case does not involve any question as to highway, and the right to use the same, for there is nothing in it tending to show that from the old ferry up to the bar-way, through which the defendant passed, there ever was any public highway, or any thing more than a temporary way made by the plaintiffs to accommodate public travel to the ferry while the bridge was in the process of construction, or of repair, and then ceasing to be used for such purpose.
The judgment of the county court is affirmed.