BRIEF PRACTICAL TREATISE CONSTRUCTION AND MANAGEMENT PLANK ROADS, ROBERT DALE OWEN. H AN APPENDIX CONTAINING THE GENERAL PLANK ROAD .LAWS OF NEW- YORK, KENTUCKY, INDIANA AND ILLINOIS, ANDTHE AMENDMENTS THERETO UP TO THE SESSION OF 1849-50. ALSO, THE OPINION OF JUDGE GRIDLEY OF THE NEW YORK SUPREME COURT IN THE CASE OF BEN- EDICT VS. GOIT. NEW ALBANY: KENT & NORMAN, PUBLISHERS. 1850. Entered according to the Act of Congress, in the Clerk's office of the District Court of the UNITED STATES, for the District of Indiana, by P. M. KENT, in the year 1850. TE plank and stringers. Sort of timber. Estimates for roads with plank of various thicknesses. Party should camp out. - 55-63 CHAPTER VIII. TOLLS AND TOLL GATES. Gates how far apart. Pay of gate-keeper. Canadian plan of farm- ing out gates. Limit of toll; by law of New York; of Ken- tucky ; of Indiana ; of Illinois. Principle upon which toll la charged. Legal decision thereon. Provision in Indiana law. Probable construction thereof. Plan of gate-house, sheltering traveller. - - 68-74 CHAPTER LX. CAPABILITIES OF PLANK ROADS. Horse power of uncertain calculation. Estimates of various wri- ters. Power of draught decreases rapidly with velocity ; and on ascents. Low average adopted. Result, as to plank road. Two horses will draw easily a load of six thousand pounds. Thus power of draught trebled. Plank road can be used at all sea- eons. Trip can be made in less time. New servant three times as strong as the old, and always ready and willing. - 74-79 CHAPTER X. COST, DURABILITY AND REPAIRS. Cost of road laid with three-inch white oak. Cost of New York roads. How many teams will wear out two inches of hemlock ; of white oak. Natural decay; of hemlock; of pine; of white oak. When two-and-a-half inch plank suitable and when three- inch. Annual repairs. Mode of making them. - - 79-83 CHAPTER XL PROFITS OF PLANK ROADS. Dividends of railroads ; of macadamized roads ; of plank roads. Remarkable examples of the latter. Data whereby to calculate, in advance, the profits a plank road will yield. Annual expen- ses. Twelve two-horse teams each way each day will usually pay six per cent and all expenses. What lines may be safely undertaken. Calculations of profits at various amounts of daily travel. What a plank road will earn, before it wears out 84-88 CHAPTER XII. GENERAL CONCLUSIONS. What a good bargain is. Plank road a goad bargain. Compara- 114 viii tive advantages of railways and plank roads. Element of risk in calculating railway dividends. No such element in estimat- ing plank road profits. Macadamized roads out of date. Earth- roads will be gradually disused. Road-toll will replace road- labor. Bad legislation only bar to rapid spread of plank roads. Kentucky law restricts too little and too much. If wise laws prevail, plank roads will spread throughout the West. - 89-95 INTRODUCTION. THE circumstances which gave rise to, and furnished materials for, the present Treatise, are as follows : In September last a Company was organized, under the General Plank Road Law of the State of Indiana, for the construction of a Plank Road in Posey 'County ; namely from New Harmony on the Wabash, to Mount Vernon on the Ohio ; a distance of fifteen miles. Of this Company I was elected OHO of the Directors. At the first meeting of the Board, as we found ourselves uninformed in regard to many practical details connected with the construction and management of a species of improvement, still novel in our State, a resolution was passed, requesting me, on fcehalf of the Company, to visit that portion of Western New York where Plank Roads were first introduced into -this country, for -the purpose of procuring the necessary information. I spent several weeks in this excursion and succeeded 4n its objects in a very satisfactory manner ; having been fortunate enough to meet with old Congressional acquaint- ances, some of whom had been engaged in the practical construction of Plank Roads, while from others I procur- ed an introduction to the original projectors and managers of the first Plank Roads built in the Union ; and these gentlemen, in the most liberal and obliging manner, com- municated to me every information I could desire. I visited Caze-novia, Chittenango, Oneida Lake, Syra- cuse, Rome and Utica ; at all which places I had opportu- nity to converse with those who were more or less con- nected with such roads ; as well with the Presidents and other officers of Plank Road Companies, as with men who had been extensively engaged in their practical construc- tion. I saw a number of different plank roads, some in progress of construction and one already requiring the re- newal of its superstructure : and obtained many plans, estimates and specifications. My visit and its object having become known, I had frequent applications for information. One or two brief articles which, in reply, I published in the newspapers, only invited further questions and more numerous and minute enquiries. And at last, although conscious that I had accumulated but scanty material for a treatise on this subject, I found myself in the position, either, with appa- rent churlishness, to refuse reply to communications that had become too numerous for private correspondence ; or to refer my correspondents and the public to a brief vol- ume, which should embody the information, such as it was, that I had obtained. I determined on the latter course. How imperfect so- ever my little work, it will doubtless convey to many, on a subject so new and little known, details and suggestions of practical value; information which may induce many who are to benefit by these roads to urge forward and aid their extension ; information, too, by which thousands of dollars may be saved to those who undertake their con- struction. I know of one road, at least, in this State, which for lack ot the requisite knowledge, has cost near- ly, if not quite, twice as much as would have sufficed, un- der proper management, to complete it; and will be found, eve* at such a cost, imperfectly and unsuitable construct- ed. Experience in regard to the construction of such roads is daily and rapidly accumulating ; in our own State alone it is supposed that four hundred miles will be completed this season. The result will doubtless be, great improve- ment in the details of their construction ; and probably considerable modification of many of the recommenda- tions here given. I shall esteem it a favor, if Acting Com- missioners, or others, practically engaged in plank road making, will communicate to me the result of any experi- ments which show an improvement on the plans of con- struction laid down in the following pages. R. D. 0. NEW HARMONY, Indiana, March 1, 1850. I TREATISE ON PLANK ROADS, CHAPTER I. EFFECTS FROM IMPROVED ROADS. It may be confidently asserted, that, in our Western country, there is not one man in fifty who has ever sat down to make a deliberate calculation of what may be gained to the residents of a country by improved roads, or what is daily lost, among us, for lack of them. In other words, few men have made an estimate as to what amount of toll they might profitably pay, in order to ob- tain any given increased power of draught, on our ordina- ry thoroughfares. Say, that two stout horses can, under ordinary circumstances and in the average condition of our common country roads, draw one ton at a load.; and suppose, that, by any given plan, the surface of these roads becomes so much improved, that the same horses, with equal exertion, can draw three tons at a load, what amount of toll per mile can a teamster profitably afford to pay, in order thus to increase three fold the power of his team ? The answer to this question, depending upon the pres- ent usual rate of transportation by wagon, will vary some- what in different neighborhoods. The rale from the town in which I live to Mount Vernon, our county seat on the Ohio, fifteen miles distant, is more usually twenty cents per hundred pounds than fifteen ; and sometimes twenty- five cents. Put it, however, at fifteen cents ; or one cent 6 per hundred pounds per mile ; which is probably as low as the usual rate of hauling, take the summer and winter through, over the State of Indiana. If, then, the power of draught is trebled ; or, in other words, if, by the same time and labor of man and horses which nosv convey one hundred pounds along the road, three hundred pounds can be conveyed ; then the gain, for every hundred pounds of the original load, is two hundred pounds, or two cents per mile. On the entire load of one ton (nett, of 2,000 Ibs.) the gain would be twenty times that amount, or forty cenls per mile. It follows, that, if we suppose a wagon always fully- loaded, and its owner paid for all the loads he hauled in cash, at the rate of one cent per hundred per mile, he would neither gain nor lose by paying a toll of forty cents per mile, for a two horse wagon. In practice, indeed, this calculation would not hold out. A wagon is often but partially loaded, and frequently re- turns empty. And in hauling firewood or farm produce, a farmer, employing his team during leisure days only, does not rate hauling so high as a cent per hundred per mile. Perhaps half the amount, or twenty cents per two horse wagon per mile, might be a reasonable, practical es- timate. If it were but one fourth, however, or ten cents, the result is amply sufficient for the present argument. This is no fanciful theory. It is a very plain and simple estimate which any farmer or teamster, sitting down by his fireside, may verify, with his pencil, in five minutes. If I have not put the rate of hauling too high, the deduc- tion can no more be denied, than we can deny, that two and two make four. Now, I am about to set forth, in the following chapters, the details of construction by which roads, partially cover- ed with plank, can be made throughout our State, or any other State where timber can be readily procured; which roads shall enable every man who travels them to convey, on the average, by wagon or otherwise, at least three times as much as he now does, with any given horse pow- er. And I am about to show, that instead of exacting u loll of ticenty cents per mile for a two horse team, on these improved roads, a toll of two cents per mile, the highest allowed here by law, will, on any moderately travelled line of road, pay to the owners of the road a handsome per centage on their investment. In travelling on such roads, when a wagoner, fully loaded, passes, every five miles, through a toll-gate, and pays at each, for his two horse team, one dime toll, he is paying for that which, for the time and at present rates, is actually worth to him two dollars ; for if the toll-gate had not been there and the road had remained in its ordinary state, he would have charged (at the rate of one cent per hundred pounds per mile) two dollars for conveying four thousand pounds five miles ; which four thousand pounds, in addition to his ordinary load, he is now hauling along that five miles without any increased power or any addi- tional cost, save only this ten cents of toll. In paying ten cents toll, then, he mav be regarded as a gainer of one dollar and ninety cents for every five miles he tra- vels ; and he would actually gain it, if he had always a full load and if rates of transportation remained un- changed. Let rates vary as they will, it is a gain to some one. If, to any one, such a result seem incredible, 1 ask him to take pen in hand and disprove it if he can. If he cannot; if plain, truthful figures lead inevitably lo such a result, then it must be conceded, that roads thus improved, at such a rate of toll, are a national blessing, of which it would be difficult to estimate the pecuniary ad- vantages. The mere diminution of the rates of hauling, discon- nected from other results, is the least portion of these ad- vantages. There lives, on the line of such an improved road now in progress of construction from New Harmony to Mount Vernon and about snidvay of the distance, a prosperous farmer named Wilson. He OWBS a thousawd acres of land, on both sides of the road ; of which kd about a hundred and fifty acres are cleared and under cultivation, while the remaining eight hundred and fifty acres, rich aud heavily limbered, are still in a state of nature, and are, to the owner.. asou.rce of no revenue- and of continued taxa- tion. Why does Mr, Wilson not sell cordwood from his tim- bered land and thus obtain the means of clearing and ma- king it productive ? Because his nearest available market is Mount Vernon, more than seven miles distant, and it will not pay to haul wood thither, on the present road, as will readily appear by comparing rates and prices. Cord- wood for family use is worth, in Mount Vernon, a dollair and a ha'.f a cord, steamboat wood rating, somewhat high- er. Mr. Wilson is satisfied if his four horse team, at leis- ure times, earns two dollars and a half a day ; and, in long summer days, he can make two trip* to Mount Ver- non, conveying one cord of seasoned wood each trip. To chop this wood costs about forty cents a cord. The day's work, then, would stand thus: Labor of team and teamster - - - $2 60 Chopping two cords of wood at 40c. - 80 Cost of 2 cords of wood delivered - - $3 30 But these two cords of wood would fetch three dollars only ; thus leaving a daily loss by the operation, of thirty cents. Of course Mr. Wilson hauls no cordwood to Mt. Vernon. But now, let us see how the account will stand when the improved road, trebling the power of draught and taxed with tolls, is completed. Mr. Wilson can then, with four horses, on a properly constructed wagon with spacious wagon-bed and broad tires, as easily haul three cords of seasoned wood, as now he can haul one, and his two trips can be made at all seasons and in considerably shorter time than at present. Each day, then, a single four horse team can deliver six cords, at a cost as follows: Labor of team and teamster, as before - - 2 50 Chopping 6 cords at 40c. - - - - 2 40 Tolls, 30 miles, at 3 cents per mile 90 Cost of 6 cords of wood delivered $5 80 These six cords would bring nine dollars; leaving a daily profit of three dollars and twenty cents; more than fifty cents a cord. As, however, the cost of hauling the wood from the spot where it is cut to the line of plank road should be added, and there must always be allowance for contingen- cies, I deduct twenty cents and say thirty cents only a cord. Now, let us examine the results. While the old road, without toll-gates, was the only medium of transportation, Mr. Wilson's cordwood, as an article of commerce, was worthless. In point of fact, if he desired to clear his land, it was a negative quantity, worth less than nothing ; or, in other words, a source of expense, since it would cost something to roll the logs in heaps and burn them out of 10 the way. But as soon as the improved taxed road is open- ed, this same wonhless incumbrance becomes, at once, of so much value, that it will pay, twice over, for clearing and fencing the land on which it stands. For if we put the number of cords of wood to the acre, reserving rail- timber, at seventy-five (a low estimate* on beech and su- gar-tree land as thickly limbered as that of which I speak) these, at thirty cents a cord, would be worth twenty-two dollars and a half an acre; and half that amount, the cord- wood being out of the way, would not only clear and fence the land but also erect ordinary farm buildings on it. What would Mr. Wilson have thought of it, if some one had proffered to clear and fence, ready for cultivation, say two hundred acres of his woodland, and to pay him two thousand dollars for the privilege of so doing 1 He would have deemed such an offer little short of madness, or a miracle in his favor. Yei just such a miracle is actually wrought, in his favor, provided he has energy and enter- prise to profit by the road which will soon run past his door. If he avail himself of its facilities, what will be the probable consequences, to himself and to the country ? Let us suppose, that he keeps two four-horse teams re- gularly running between his farm and Mount Vernon, conveying thither twelve cords of wood a day. To chop and haul this wood he must employ regularly ten or twelve hands. *Good upland, well timbered, will usually average as much as this, if it be carefully managed and if part of the cord-wood be for family use. A neighbor of mine who has experience in such matters, having clear- ed a large number of acres on the Ohio, informs me, that he obtained, on the average, 42 cords of steamboat wood to the acre, and had left nearly as much more suitable for family use. But the ordinary Ohio bottom lands do not furnish as much cord-wood, probably by a third, as good beech and sugar- tree land. 11 Here, then, we have a mere improvement in a road, creating permanent employment and giving birth to a lu- crative business ; furnishing a livelihood to eight or ten additional laborers on a single farm, and returning to the owner of that farm a clear profit, from this newlv created business, of seven or eight hundred dollars annually. But the benefit to the country does not stop here. The land which would have remained timber-clothed and un- tenanted excent by beast and bird, is opened into farms and occupied by busy settlers. Here we have all the elements of national prosperity. Remunerating employment supplied ; profit-bringing busi- ness called into existence ; forest lands reclaimed ; real estate made valuable ; the productions of the earth in- creased, both in quantity and in value. There is another point in the case well worthy of re- mark. The improved road creates its own business. If it had never been made, Mr. Wilson's cord-wood would have remained in the tree, and his teams would not have started. It will be the new road that starts them. But these teams will pay to the stockholders of that road a dollar and eighty cents per day; or say five hundred and fifty dollars a year. This is the interest, at six per cent, on upwards of nine thousand dollars ; or more than half the amount which the improved road from Mr. Wilson's farm to Mount Vernon will cost, all expenses whatever in- cluded. And then there are the farms which, as we have seen, the road enables Mr. Wilson profitably to clear. The oc- cupiers of these farms will have their teams, and their corn and wheat and other produce to be sent to market. Here again the road is creating and increasing its own bu- siness. 12 I have followed out this example, in its details, because similar results will be found along the line of all such im- proved roads, varying in degree of advantage according to distance from market, to prices and to the precise char- acter of surplus production. hi practice it has been uniformly found, that such roads immediately and rapidly augment the amount of travel. Mr. Alvord, of Salina, N. ST., under whose superintendence the first plank road ever built in the United States was completed, and to whom I am indebted for much valuable information on this subject, told me, that, previously to the commencement of that road, it was deemed prudent to station men on different days and at different points along it, to ascertain the average number of teams that passed each day. The number proved to be^sevemy-five. This was in the year 1845. In the month of July, 1846, the road was completed, namely from Central Square to Syra- cuse, or rather to Salina, noted for its extensive salt-works, where its southern terminus is ; and similar observations being repeated in the summer of 1847, the average daily number of teams was found to have increased to two hun- dred and fifty. In other words, in one year after the open- ing of the plank road, the travel had more than trebled. I asked Mr. Alvord how, without a great increase of population by emigration or otherwise, this rapid increase of travel, could be explained. " It is easily accounted for," was his reply. " The chief transportation over our road, is of empty salt barrels for the Salina works. The country north of us furnishes excellent timber for cooper- age. Previously to the building of our plank road, these barrels came in, on the old road, from a distance of six, seven or eight miles, for that was as far as it would pay to bring them ; forty or fifty barrels being, in the average 13 state of the road, a load for two horses. Now, they are brought from a distance of fifteen or twenty miles ; the business of cooperage has spread over a large tract of coun- try not hitherto employed in it ; and I have frequently counted a hundred and fifty barrels piled on a two-horse wagon." The Syracuse and Central Square Plank Road had thus, in a single year, created a new business, equal to double that which existed along the same line, while the medium of transportation was a common earth road only.* If the chief staple on the Salina road, instead of being salt barrels, had been corn or pork or hay or shingles or any other article, whether of farm produce or of manu- facture, the principle would equally have applied, and the result would have been similar. There are some cases in which it is a very easy thing to prophecy, and the progress of plank roads is one. These roads are as certain to become universal in Indiana and other forest-covered States, as men are certain, when the choice between one dollar and five dollars is offered to them, to select the latter. The simple reason is, that, if they are properly con- structed along any of our principal State or county roads, all parties concerned are gainers. The farmer or team- ster pays two cents per mile for the privilege of adding four thousand pounds to a two horse load and still draw- ing it as easily and rapidly as before ; and that privilege is worth five or ten times what he pays for it. Then there is the gain to the owner of land. I would give Mr. Wil- son five dollars an acre more for his land with a plank *Mr. Alvord further informed me, that the average time employed on a trip on the plank road was not more than two-thirds of what it had been, for the same distance, on the old road. 14 road running through it and connecting it with Mount Ver- non, than I would without it; and for a very sufficient rea- son. I could rr.ake with the privilege of the plank road, ten dollars an acre additional profit from it, beyond what could be realised, so long as the present unimproved road is its only medium of communication with the Ohio river. But if we estimate the average increase in the value of lands along a plank road, to be, for each acre within one mile of the road, one dollar only; for each acre within iwo miles of the road fifty cents ; and for each acre with- in three miles of the road, twenty-five cents ; then the to- tal increase, amounting to two thousand two hundred and forty dollars for each mile of road, would more than suf- fice, under ordinary circumstances, to pay the entire cost of construction. Thus, if the building any line of plank road increased the value of lands wiihin three miles on each side of it, at the above rates, the owners of the land could afford to complete it and open it to the public, though it never returned them a cent in the way of divi- dends. But it is easy to show, and experience has proved it, that, at the usual cost of such roads, an amount of daily travel, equal, on the average, to from ten to twelve two horse learns, each way, will pay a dividend of six per ceni over all current expenses. As to the renewal of the su- perstructure, the increase of travel may, in every case, safely be trusted to overpay that. The detailed estimates necessary to substantiate the above calculation are given in a subsequent chapter. I repeat it, a species of enterprise thus eminently ad- vantageous both to its stockholders and to the public must spread, with rapid strides, wherever material can, at rea- sonable price, be obtained. In the soil of the deep, allu- 15 vial forest lands of this and of our neighboring States there lies buried in rich profusion, as surely as in the sands of the Sacramento, if not gold, gold's equivalent. It is so troublesome and expensive, with no better facilities than our present wretched roads afford, to sift and coin this home gold, that many prefer the dangers of the Plains or the Isthmus, and seek on the distant shores of the Pacific the wealth which a little judicious enterprise would place within their reach ut home. Show clearly, at first by careful estimate, afterwards by actual experience, that the home gold is to be had; and the same money-seeking en- terprise which is now building up San Francisto into the metropolis of half a continent, will go zealously to work to construct that home-gold-sifter, the plank road. If Mr. Wilson had found, on his farm, a gold mine for which he was offered five thousand dollars, the rumor of his good fortune would have rung all over the land. The plank road is, to hitn, quite as advantageous as such a mine. It renders timber that was comparatively valueless worth ten or twenty dollars an acre. It increases, by much more than five thousand dollars, the intrinsic value of his farm. And so of other men, and other articles of produce, wherever a plank road passes or nears them. Wheth- er a farmer adds five hundred dollars, yearly, to his in- come, by washing sand out of some gold-bearing creek that crosses his meadows, or whether it comes to him in the shape of increased value of corn or wheat or pork or limber, or of a stone-quarry perhaps, which, till then, would not have repaid the cost of opening it, what differ- ence, except in fancy and in name 1 There is one effect produced by all improved roads, whether plank or railways, which is well worthy of note. 16 They tend to equalize the value of land. Why does a farm three miles from a flourishing town sell, perhaps, for twice as much per acre as a farm of land equally good but nine miles distant 1 Because the cost of transporting produce to its usual market, is three times as much from the one farm as from the other. If you construct an im- provement passing both forms, whereby the cost of trans- portation is reduced to one-third its present rate, the effect is to give to the distant farm the advantage of six miles transportation saved, or in other words, to bring it six miles nearer to market ; while the effect to the nearer farm is that of approaching it two miles only closer to market. They are placed, therefore, much more nearly on an equality ; and, as a necessary consequence, their monied value becomes more nearly equal. Time was, when the daily marketing of cities was sup- plied, almost exclusively, by market-gardeners, living but a few miles from the corporation line, on land which owed its high value to the species of monopoly it enjoyed. Now, half a State comes into successful competition with them. I recently drank, in my coffee, at a friend's break- fast table in New York, milk which had been, that same morning at four o'clock, milked on a farm seventy miles distant. The railway which conveyed it to the city, tend- ed to equalize the value of land, as between that farm and the dairy-farms of Long Island. Its effect, like that of all other improved roads, tended to the equalization of the value of property, to the extension of free competition and to the suppression of exclusive privilege. Against railways the objection has been urged, that the farmer's wagon, at leisure times, is not available, in con- nection with such an improvement. The objection is un- doubtedly valid, as far as it goes ; though counterbalanced, 17 cri important lines of transportation, by the speed and the power of the locomotive. This objection does not lie against the plank road. It is the farmer's railroad, prepar- ed to receive his owa wagons and teams, if the former be but stout enough to bear up under the loads it euables him to draw over its graded and imp roved surface. It will never supersede the iron railway and the steam- drawn car. Each of these improvements has its appro- priate sphere ; tfae railway as a great, leading thoroughfare, terminau.'ng in cities and connecting distant sections of country; the plank road to afford communication between smaller towns and villages, to form neighborhood and cross-roads, oftee at right angles to a railroad Line, supple- mental to it, and terminating at its stations. Plank roads first sprung up and became profitable among us, in the immediate vicinity of raikoads. Those which I saw in Western New York were chiefly tributary to the Buffalo and Albany railroad, iheir general direction being usually north and south. The success of plaiak roads in the State of New York, and the estimation in which they are there held, may be judged from the fact, that although the first plank road ever constructed in the United States, to-wit that from Syracuse to Central Square, was opened only about three years and a half ago, yet, at this moment, upwards of two thousand miles of plank road are in operation or in progress of con- struction, in that State alone.* I made special enquiry as to the dividends declared on these roads, and could not hear of one, in full operation, that paid less than ten per *3ee recent report ef the Secretary ofc State of New York, in which w are informed, that there are articles of association filed in his office contemplating the construction of more than 2,000 miles of plank road, and involving the expenditure of more than three millions of dollars. 2 18 cent, orer expenses.- Among; so> many,. Fro:*e-*er- doubtless, will prove unprofitable; and this I the rather anti- cipate, because I noticed^, occasionally, much carelessness in conswuctror*.. These roads zv& ijttiTsrsn&y feeldy so- fcirae I had oppor> lurii*y &f judging, i-n high estimation by the farmers. I deove out oa the Syracuse rood uvo mUr.op*tioa took the free road, to Syracuse- His sepl-y was, that, ia saudd-y weathec. hardly a single wagon turned into the earth road ; btu that i*i. fine, dry weaihec, the propottio-n, as he had satisfied himself by keeping count on several different days, was, that one in every seven o$ eight wagons took the frss r-oad, and the rest passed through live- toll gate a-nd on. the p4ank. Yet this was no fair criterion whereby to judge the respective de- grees of favoc o-f the two noods-;. for the teaans eoming along the earth road, say with a ton each, paid the same loMi for that singls ton- sa if they heed been loaded express- ly for the plank road, perhaps with three tons apiece-. To every thing norel objections wilt be rai>?ed ; and of course to plank roads. The objections most popular and 19 most usually urged, especially where the right of way over an old load has been demanded, is. that it is convert- ing a road that has ever been free to all, into a taxed road for the benefit of a Company. Lei us examine, in another chapter, this question, of free and taxed roads. CHAPTER II. FREE AND TAXED ROADS. The old Indian trace is a free road. So is a cow-path from farm to farm. In like manner, a private wood-road whereon to haul rails to a field, or firewood to a dwelling, is, after it is once chopped out, a free road, until trees fall across it, or dead branches drop upon it ; and it is thus blocked up, requiring a tax, in the shape either of labor or money, to open it afresh. But to talk of any of our ordinary State or County roads, even after the original cost of opening them through the forest is paid, being free roads, is an abuse of terms. They are, from the necessity of the case, taxed roads ; roads taxed sometimes very heavily; and always, as the road-law of this Slate and of most other States now stands, very unjustly. There must be expended upon them, year after year, money, or labor which is money's equivalent, not to keep them in good order for that they very rarely are, even in summer, and, in the winter months, never but to keep them passable. And this word passable must be very lib- erally construed, to apply in the case. The road hence 20 to Mount Vernon, can be travelled at this moment; and is, therefore, in strictness, passable ; for I travelled it, in company with a friend, the other day. To convey us and two small trunks across, required four active horoes ; and they sunk, literally to their girths, in the frequent mud- holes. There were no toll-gates on it, it is true ; but each of us, in addition to the annual highway tax we pay to keep this road in repair, paid, on this particular occasion, a toll of two dollars ; that is, upwards of thirteen cents a mile. Our fare, for fifteen miles, was three dollars each ; and the charge was moderate ; for the trip to and fro was a hard two days job for a four horse stage. A two horse stage would have done it, with much greater ease on the plank road, in a single day ; and the charge would not have exceeded one dollar apiece. The difference, two dollars to each of us, was a tax imposed for lack of a plank road. That was a fair amount of toll to pay on one hundred miles of a perfectly good road ; a plank road, for example, on which a carriage could travel, summer or winter, at the rate of ten miles an hour : but to pay it on filteen miles of road, for the privilege of wading, at the rate of three miles an hour, through mud under which our wheel-hubs were continually disappearing, was neither pleasant nor profitable. I beg it may be understood, however, that I do not in- stance this as a case of uncommon hardship, or a tax of unusual amount. Last winter, the inhabitants of Me. Leansboro, a small town in Southern Illinois, some forty or fifty miles northwest of Shawneetown, found them- selves, in consequence of the miserable condition of the roads around them, cut off from all supplies and thus de- prived of coffee, sugar and other necessaries of life. Tempting offers were made to several teamsters, but none 21 of them would stir from home. At last, a farmer of the neighborhood declared, that he had a team of four horses which no mud could daunt, and that he would risk a trip to Shawneetown, and bring back the necessary supplies. Ten days elapsed, and his empty wagon was slowly and painfully dragged into town by two drooping and jaded horses, scarcely to be recognized as part of the fresh and spirited team that started on this expedition. Their own- er, by great exertions, had reached Shawneetown, where he took in about half a load. Two of his horses were killed in the attempt to return ; his load was left perforce on the road, and the surviving horses were so worn down by the trip as to be unfit for use during the rest of the winter. The tax, in this case, was a severe one ; considerably exceeding a hundred dollars for the trip. But a hundred dollars ought to pay toll on a wagon loaded with three tons and travelling over the very best road, for five thous- and miles ; and ihat is more than one fifth of the distance around the world. Nor let any one imagine, even setting aside such inci- dental toll as the above, that this horse-killing Shawnee- town road is, in any sense, a free one. Its tolls are not, inded, collected in gatehouses, a dime at a time. But the farmer is called from his half-ploughed field, and the me- chanic from his workshop, to expend so many days labor upon it ; and the land-owner pays toll thereon in the shape of a percentage on his property. It can never be a question, whether our highways shall be free or taxed, for no roads will keep themselves in or- der. The sole question is, upon what principle shall they be taxed ? Toll must be exacted from some one ; either from those who travel them, or from those who do not 22 1 think the just principle, in this as in other cases, is, that those who use a thing should pay to keep it in order. Our road-law makers, however, seem to have been of a different opinion. A man may drive wagon or ride horse, in the course of a year, many thousand miles over the roads of a county ; he may be the jwner of a daily stage which cuts them up as much as the transportation from a dozen farms ; and yet our present law does not require him to contribute any heavier toll to defray road expenses and repair the great wear and tear he occasions, than the farm-laborer, earning his eight dollars a month, the owner of neither team nor saddle-horse, and who travels the roads, when he travels them at all, on foot. I do not recommend that toll-gates should be erected on our county and state roads ; but the reason is, not because the principle of road-toll is unfair it is the only fair prin- ciple but because the expense of toll-gates, on roads so little improved as ours, would not be warranted. It must be regarded as an excellent feature in the plank road sys- tem, that it enables us, so far as that species of improve- ment is carried out, to replace an unjust by a just mode of taxation. The present road-tax system, of personal service and commutation, though it exists, under varying modifications, in almost all the States of the Union, very much resem- bles, as a recent writer on Roads has remarked, a remnant of feudal vassalage, when one of the tenures by which land was held was the obligation to make the roads pass- able for the lord of the manor. In the first settlement of a frontier country, some such system almost naturally suggests itself. But we have outlived its necessity, and are suffering grievously from its imperfections. If half the amount now exacted in labor were collected in money 23 atnfl expended, rn each district, under the direction -of A practical road-ma'ker, tfee burden would 'be much less tmd the roads much better. And if this money -tax were collected chiefly from land, of which the valuens increas- ed 'byl'he improvement of roads, rt ^vould be a mudh more equitabte assessment, than : rf levied, -as many road-'law* ipermrt, l in the ^hape erf a petl-tax on each adk mate to- habitant. 'But the w"hole system : is radically 'Unequitable, so long a *he road-travellers are not reached; so "long as those who chiefly wear oet the roads do'Rot chiefly pay for that high- way la'bor of tv'hie'h they reap th-e 'benefit -and have -caused the necessity. I wotfid -not'huve rt imagined, that 1 -regard (he present system off toll-free roads, us specially favoring the travel- ler. 1 considered it no special favor, on my recent trip from MOUTH r v r ernon, "to 'have the privilege of paying -two dollars extra r to the stage-driver, nd saving fifteen cents hi the^hape of -idll. T*hat unlucky -wtgrit -who "lost -two food 'hcrses on the Shawneetcwn roafi ws -not speciaily ifiivoted on the trip, though no foll-bar crossed his way. The bill paid to tfee blacksmith or the wagon-maker or the adler, for ^repniring an axle-tree Ctmt wfte'lirdken in a rut, ior renewing. a pair cf wheels racked ae pieces over froz- en clods, or*m.eiadHag a set ef harness .which tiiad praved tjnsulficicnt to withstand the 'jei*k out -of & mud-hele to -say nothing of delays end venation and .absolute tci|)pQge n fact, a source of grievous tax ; of tax sometimes s grievous, that it swallows up- all the profits of the richast land, or causes it to He, for long ye>rs, unpurchased, eves at gov- ernment price-, Tky are a prolific source yf poverty, a daily temptation to- careless waste, the baa of thrift and the grave ot enterprise, la some eoiuwies a prejudice will be found to exist against the graft;*, by ihe County Commissioaers,* of the right of way over any State or cou.aty road, when the sanoe is requested for a- plank road ; and that prejudice- will entrench, kself behind the argmivent, thai a public- highway, which- has everbeen^, since the first settlement of the cx!>niy, feee aedepen JG all, a road which is the result o< the- later oF be present residents and their fa- thers before them should not beoome the property, and be subjected to tli& GOBI sol, aad to the taxes, of a private company. * fct The directors -mny, wittr. tfe eoT^ent of Ae Bloar< of Gaunt j Gom- miask>ner& of the County, locate said road ower any. State or County road or other public highwav ; and thereupon. ssich State or County road or other public highway, or s\u-h portion thereof as mny be se occupkd. anci appropriated shall be and become the property of said company for the porpoee of making and maintaining said road and the gates and toll- hoaees thereon;. And the Boards of Ccanty Commissioners of the sev- eral counties of this State are hereby authorized to give their consent to* the appropriation, and occupation of an? such State or County road or otlser public highway, over and upon which any. such company may lo- cate any such road.." General Plank Eoad Law of ihe State of Indiana^ Sec. *.- Similar provisions are incorporated in. the Genecal Plank. Road. La^s- of New Yock^ Ohio, and Illkiios, 25 All changes of a novel character require explanation be- fore they can obtain favor. The County Commissioners ought not to be expected to grant the right of way, if pub- lic sentiment is opposed to it. It should be the care, then, of the friends of any plank road, ii> case difficulties as to the right of way present themselves* to call together pub- lic meetings, and find speakers who- will explain, in a plain and business-like manner, the true state of the case. Such appeals, if made in a proper spirit and sustained by prac- tical arguments, cannot fail of success. This course was resorted to in this county (Posey) where, for a time, much disinclination to the grant of way existed; and with so much effect, that, when, after a lapse of some weeks memorials were presented to the County Board for and against the cession of the State road to the Plank Road Company, ten names were found in favor of the grant for every one opposed to it. This matter is well worth some trouble on the part of Plank Road Companies. The amount saved in cost of construction by locating a Plank Road along the line of an old road must vary much, according to circumstances : but I do not think it is usually less than fiomawo to three h-an- dred dollars per mile; often much more." If the new road has to be cut through woodland, the additional expense will exceed that amouivt; for heavy grubbing is worth up- wards of three hundred dollars a mile. If, on the other hand, the road run through improved farms, the amount demanded for right of way by the owners may be consid- erable. A little pains, however, duly taken, to enlighten public sentiment; a clear and distinct refutation of the popular er-or, that our present ill-made and profitless public high- ways are free, and that tolled roads only ar .' taxe ] ; a lucid 26 exposition of the true principle of road taxation; these will, in almost every case, suffice to convince the great majority of tax-payers, that it is both just and expedient to abandon to those who will effectually improve them, roads which we ourselves cannot profitably use as they are, nor under any moderate rate of taxation, make what they should be. CHAPTER III. ORIGIN OF PLANK ROADS. Wood has been employed, in various forms, as a material for improving roads, in different countries. Wooden rail- ways were used, in some of the English collieries, in the early part of the seventeenth century. Wooden pave- ments have been constructed both in Europe and in this country, usually of hexagonal blocks; but they have been found too expensive on an ordinary road, and too perish- able to replace with advantage, in the crowded streets of a city, pavement of granite. Our own "cordaroy roads," formed of young trees or heavy rails, laid side by side, across wet portions of a highway, are well known to ail western travellers. They are very valuable as a substitute for a swamp, very excu- sable in the first settlement of a country ; but, as a perma- nent and habitual construction in a well settled neighbor- hood, they are an example of labor unprofitably expended, a disreputable evidence of indolence and lack of enter- prise in the inhabitants. NJ mode of emplo3'ing wood as a material for roads, 27 has been so successful in practice, nor so profitable to all concerned, as the laying down of plank, from two to four inches thick, on a portion of the road ; now usually made sufficiently wide for a single track only ; sometimes with wooden turn-outs at intervals, to enable vehicles to pass each other; more frequently with an earth or gravel road, along side of the planked portion, sufficing for the same purpose. This mode of employing wood in road construction is said to have originated in Russia. At all events, plank roads have been known there for many years. Their pre- cise mode of constrution, in that country, 1 have not been able to learn; but I conjecture, that they were made wider than eight feet, the usual and most approved width now among us. Certain it is, that when, at the instance of Lord Sydenhatn, who had seen them in Russia, and who afterwards, as Governor General of Canada, recommended their adoption, they were tried in this latter country, some of the roads, first constructed near Toronto, were made double-track, of plank sixteen feet long ; and others, in- tended for single-track only, were yet made twelve feet in width. Whether, on the Russian roads, it was deemed necessary to fasten the plank down in any way, I know not; but in Canada the Board of Public Works directed that they should be nailed to the stringers or sleepers on which they rest with one spike at each end for planks twelve inches wide or less, and IWD at each end for planks of a greater width ; the spikes to be six and a half inches long, three-eighths of an in?.h square with chisel-shaped edges and broad heads, and to be driven with the chisel- edge across the fibres of the wood. Various experiments were also made in Canada, as to the best mode of laying the plank. On the first road lead- 28 ing from Quebec, they were laid lengihwise of ihe road, instead of across it; and on the Longeuil and Chumbly road, in ihe vicinity of Montreal, they were laid oblique- ly, to -wit, at an angle of furiy-five degrees to the line of the mad. This latter plan renders necessary longer plank for any given width oi road; twelve feet plank making an eight foot track only. None of these experiments succeeded, and their trial and failure ought to be recorded, that we may not, as some in our State have done, try over again what is already ex- ploded. The attempt to construct a double track plank road by laying down plank sixteen feet long (usually on four string- ers*) proved a complete failure. The theory was, that teams going from town should drive on the right hand eight feet of the road, and those returning should use the other eight feet. But this never happens. The tendency of travel, as al! road-makers ought to know, is ever to the centre of the track. No rule set up at a toll-gate, nor any thing short of an actual division of the track, can make it otherwise, In praciice it was found, that all teams occupied six or eight feet width only, in the centre, and that teamsters turned off on the sides, only when two teams met. The consequence was, that, after a time, plank of so great a length, continually loaded in the centre, sprang upwards at the ends, in spite of the spikes employed to fasten them. And so much inconvenience was experienced by the plank becoming thus loosened and unsettled, that they were finally cut in half, so as to form a sort of double track; and this expedient, imperfect as it was, proved to be an improvement on the original sixteen foot track. *oee Canadian Board of Works' specification, 1845. 29 So also on a twelve-foot Toronto road. When, after seven years wear, the plank (of pine) were taken up, they were found worn out in the centre of the road only, to the width of seven or eight feet, while on the surface of the two outer feet on each side, the marks of the saw were still plainly to be seen. This was proof, that one third of the planking was useless, and that one-third of the expen- diture for plank had been wasted. Again, on an eight-foot track, spiking down has been proved to be wholly unnecessary, if, in other respects, the road is properly constructed. The wheels run within eighteen inches of the outer edge of the track; and this and their own weight are found to keep them down effec- tually in their places. As to the experiment of laying the plank lengthwise of the road, it was speedily abandoned. Loaded horses, trav- elling along the grain of the wood instead of across it, ob- tained no sufficient foothold, especially in wet weather; the plank wore into ruts ; the wheels cut in between the separate plank and displaced them. In a word, the plan failed. Nor did that of laying the planks at an oblique angle succeed much better. The idea was, that the edges of the plank would not wear down so rapidly as if the wheels struck them directly, and that the zigzag ends of the plank would facilitate getting from the earthroad to the plank track. But in practice it was found, that when a single wagon wheel came on one end of a plank thus laid askew, at a moment when the other wheel had not yet reached it, the effect was, to tilt up the other, unloaded end of the plank; and even if that was secured by spiking, gradually to loosen the spike and cause the plank to spring, notwith- standing. Each end of the plank is, in its turn, subjected 30 to iliis action, and thus the road is gradually broken up. So that project was abandoned, and the plank laid at right angles to the line of road. One short Canadian road, instead of being laid, as is usual, on stringers or sleepers, was constructed without any ; the ground being merely levelled off, and the plank laid down on it. I have not heard of but a single instance, and that in the State of New York, where the example was followed. And in both it is said to have resulted well. This may be, on a dry, hard, solid soil; on our rich and yielding alluvial bottoms I should certainly not advise 10 riak it. Nor is the saving such as to warrant much risk. Our stringers, on the Mount Vernon and New Harmony road, cost us but a hundred dollars per mile. The system of plank roads, so far as regards details of construction, has been, like other improvements, consid- erably matured and perfected, since its naturalization in the United States. Its details vary, however, on different lines of road. I have endeavored to select from each, so far as my observations extended, what seemed best and most ap- plicable, on our soil and in our clima:e; and present a sketch of the results, in the following pnges. CHAPTER IV. LAYING OUT. The early bridle-paths of this Western country, follow- ing the leading ridges, and connecting settlement with set- tlement, or conducting to the distant mill, were often laid 51 out wiih more judgment, than avenues of communication of later date and greater pretension, dignified with the name of State and County roads. "The passion for straightness," says an excellent mod- ern writer on road-making,* "is the great fault in the lo- cation of most roads in this country, which too often re- mind us, how " The King of France, with forty thousand men Marched up a hill and then marched down again;" "so generally do they clamber over hills which they could so much more easily have gone round ; as if their makers, like Marshal Wade, had ' formed the heroic de- termination of pursuing straight lines, and of defying na- ture and wheel-carriages both, at one valiant effort of courage and of science.' " It is a rule recognized in engineering, that when a road cannot be made at the same time straight and level, straightness should always be sacrificed to obtain a level, or to make the road less s'.eep. There is a point, of course, beyond which this principle must not be carried. As a general rule, it has been set down, thai the horizon- tal length of a road may be advantageously increased, for the sake ol avoiding an ascent, twenty times the perpen- dicular height to be saved thereby ; or in other words that it is profitable to make a circuit that shall lengthen a road by a thousand feet, if by so doing we can escape a hill fifty feet high. A case in point, occurred in locating the Mount Vernon Plank Road, which chiefly follows the old State road. At one point, the first trace followed by the early settlers had wound around the head of a small ravine, increasing the Gillespie. 32 distance about a hundred and fifty feet. Some blunderer, byway ofimprovingthe road, had subsequently straighten- ed it, so as to cut across the ravine and incur a steep as- cent of more than twenty feet. To avoid this ascent, one would have been justified in going around three times as far as the first settlers did. The road was, of course, re- stored to its original location. In lengthening a road to avoid any obstacle, the dis- tance is not increased so rach as is usually supposed. Say that the direct line connecting too points, A and B, is twelve mites; and that it is desired to pass through a point C, midway of the distance, but aside frem the direct line C 1 and two miles distant therefrom, this may be effected with- out increasing the entire distance more than two-thirds of a mile, Sganzin* calculates, that if a road between two places ten miles apart were made to curve so that the eye could in no ,part of it see farther than a quarter of a mile at once, its length would be increased beyond thai of a perfectly straight road between the same points, one hundred and fifty yards only. It is to be remembered, also, that in descending into a ravine and then ascending out of it, or in ascending a hill and descending it on the other side to the same level from which we storied, we are diverging from a straight airline, as surely, as if we suffered our course to diverted to the right or left, in order, by a circuit, to avoid the hill or the *Course of Civil Engineering, Boston, 1837. (ravine altogether. It is true the divergence is very rarely as great in the one case as the other ; a hill must be some- what in the form of a half globe to make it sp: yet it is often no inconsiderable item, and should in all cases, be taken into account. Sometimes, at a moderate expense for excavation and embaakment, by crossing a ravine or surmounting a hill, at easy grades, a considerable circuit may be profitably avoided. In what cases it may be expedient thus to pur- chase a straight line, and at what cost such a line may ad- vantageously be carried over any given obstacle, are ques- tions which must be left to the judgment of the Engineer or Locating Commissioner. -In making up a decision, it should not be forgotten, that the annual repairs, per rod, on a road constructed on an artificial surface (as on an embankment or through an excavation) are considerably greater than on a road of equal breadth running on the natural surface. In cases where, in descending a hill, we have a choice between its northern and southern slope, it is worth re- membering, that a southern exposure always makes a road drier, more solid, more safe in winter, and less expensive of repair, than a northern one. When there occurs, on any road, an embankment of considerabe height and length, without any corresponding excavation near enough to supply earth for the same, (as, for example across a creek bottom that is occasionally overflowed) it may be often profitable to substitute for the same, on a line of road which will not bear heavy cost, a common trestle-bridge. Such a structure is, indeed, tem- porary; yet, if well made, of good white oak, even if un- covered, it will last twelve or fifteen years ; and there is great saving in cost. A trestle-bridge on the Mount Ver- 34 non road, 26O fiee-t long, 112 feet wide and' averaging 15> feet high, cost but one dolla* and fomy.-five- cent* per run- ning foot, price o timber- included!; or, for tke whole- bridge about $3>7T:: while a* embankment across- vhe same- bottom wouid have cost, including a- stoae culvert, some- twelne or thirteea htiadred dollars. A little thought and judgment exerted in layrog out a* plank roadv will <=>ften suggest, even t those who* have not the advantage of professional experience,, simple- expedi- ents by which considerable saving ca be effected. In the- case of the- irestle-btidge above mentioned an exa*nple oc- curred. That bridge, raised about three feet above the- highest water mark, was of coovenieat anti. suitable height at its sowhetn extremity, ada-pung uself t.^ere io the level of the road; but a* its noiuhem end, u struck a hill, at a* point to ascend fvom which, at the grade to which, we were- limited, wwld ha-ve reojiir-ed a various forms in which these usually occur.* Under ordinary circumstances, it is a superfluous ex- *The blundering method of calculating cubical contents by "averag- ing end-areas," though usual enough, should never be permitted. A company may be very considerable losers by allowing it, as it gives an excess, often of ten per cent, or more beyond the true amount ; the error consisting in estimating the contents of sundry pyramidal masses, by multiplying their bases by half their heights, instead of by one-third their heights only, and thus making their cubical contents one-sixthgreaterthan they really are. For a detailed exposition of this error and an explana- tion of the proper mode of calculating cubical contents in excavation or embankment, see the Appendix to Gillespis's work. 38 pense to engage the permanent services of a resident en- gineer, throughout the term of construction of a plank road, as is always necessarily done in constructing a rail- road. The cost of the former improvement per mile, when compared with the latter, is so small, that it will not bear high salaries and other heavy incidental expenses. These soon run up to be a large per centape of the entire cost of the road, and thus materially influence the ultimate value of the stock. The cheapness of the plank road is ono of its chief recommendations ; its construction, ther< 1 - fore, should, in every department, be managed with all reasonable economy. It should, nevertheless, be borne in mind, that the ser- vices of a competent engineer, when really required, (as, to determine the relative cost of two or more proposed lines of road up an expensive hill, or to set the stakes for cutting and filling on the same, or to calculate with accu- racy a heavy job of excavation and embankment) may often save their cost, many tines over. In this, as in oth- er matters, we ouht to avoid pinning into either extreme, whether of profitless extravag-ince or of equally profitless parsimony. In laying out plank roads, the limit of grade is a matter upon which much of their utility depends. This subject, and the laws which govern it, are of sufficient importance to occupy another chapter. CHAPTER V, The amount of power required to overcome tire frrctkm cff any vehicle, or, rn other words, the draught necessary to s>et and 'keep it in motion, is technically termed its trac- tion. On $. railroad l ifhe traction Corresponds to tfe power ewerted by the locomotive i dragging -ohe trai-n bebrnd it. On & plank or >macadnHEed road it is tfte force -eweried by a horse against nis -collar in drawsngtmy load. When we speak of a traction -f fifty pounds, we mean a horizontal draught that \voald suffice t raise a weight ef fifty pounds perpendicularly; for example, by passing a rope uached no the wight ovr t pully-, mukmg it fast to dae sw>ingle- uree, and^causing the horse to .-advance, The Inaction <*n a perfectly level and -well *nade rail- road, with tar wheels of th proper construction and m the ^best order, is usually set down at endjclarly t will keep .in motioaa a car -weighit^ one ton. It is to.be regretied, that no trustworthy *The instrument employed in.uuch expeiiments is -eter, resembling in principle and general constructiea, :ances in common use. The draught or horizontal .fierce exerted by a .horse or other motive power, cempresses a spiral spring, lihe shortening -of which, asdndicated by a graduated scale, gives the amount of traction called forth. A full description of this instrument will be found in Par- Treatise ^on Roudsi,' 1 London, 4838. 210979 40 have yet been made to- determine', with accuracy, the trac- tion on Plank Roads. We have the data, however, whence- to derive an approximating estimate. Gollespie gives the- traction on a well made pavement at 31 pounds to the ton. A French writer, Poncelet, gi-ves the traction en "oak. planks not dressed" at 21 Ibs. Anoti)r French writer gives the traction of carts on aa ' onkea platform" at less than 29 Ibs., but of "trucks of two tons" on the same platform at nearly 44 Ibs. Taking the average of various experiments, and correcting this by the opinion of those' who have experience i-rv the matter, 1 place the traction or* A dead level plank road, well constructed of hard wood, the load being on a common four-wheeled wagon, with* good iron axles, the wheels in good order aad the pace- being a walk, at forty pou-sds to the ton ; or four times the- traction on the best railroad. On a macadamized road, well made and in good order, th traction will exceed sixty pounds; while on our ordinary earth roads, take the aver- age of the year, the traction may be set down at not less than a hundred and twenty poimaLs; or three limes the traction on a plank road. To express m differeat terms tl*e same results, the trac- tion on a level, is, on the plank road, two per cent, of the- entire load; on a macadamized road, more than three per cent.; and on a eommon earth roud six per cent, of the- same. Where tine surface is perfectly level, then a horse at a walk, caa, with the same exertion*, draw, oa a good pla-nk road, three thousand pounds, as on the average of our pre- sent roads, he can draw one thousand pounds. But where the surface varies from alevel r th.eu, (thougb 41 some writers seem inclined to a contrary opinion,*) the smoother the roud, the greater the necessity for easy grades. If, on a plank road, the grades are left as steep as on many of our present highways they are, a great portion of the advantages of the improve.rient are lost. The truth of this assertion will more clearly appear, if we ex- amine the principle of the matier. The rule to estimate the increase of traction on ascend- ing grades, is a very simple one. It is this: for every foot rise ingoing one hundred feet, add, to the traction as estimated for a level, one per cent, of the entire load. | For example: if a wagon, weighing with its load two thousand pounds, come to a hill, th-it rises with a slope of two feet in a hundred; and if the traction of that load, on a dead level, is sixty pounds; then, to find the traction on the hill, we must add two per cent of two thousand pounds; or forty pounds ; making, with the above sixty pounds, a total of one hundred pounds. Let us now observe, how, under this rule, the matter stands, in regard to grades, as between plank roads and unimproved earth roads. Suppose that two horses, on a well made plank road, draw three tons, or 6,000 Ibs. On- *Geddos, a New York engineer, in a recent useful little tract on Plank Roads, says: "Hills are less objectionable on plank roads than they are on any other roads. The plank make a better surface than any other thing that has been tried ; and the power required to draw a load up a hill is less on plank than on gravel or broken stone." This last assertion is correct. The power required to draw up tlie tame load is less. But that is nol the practical question. The loud to be drawn up, if it be a full one, is three times as great on the plank as on an ordinary road. And the increased power required to draw such a load up any given slop3, bears a much greater proportion to the draught of the same lond on a level, than does a similar increase on th lighter load drawn over an ordinary road, to Us draught on a level. this load, the traction, on a dead level, at 40 Ibs per ton, is 120 Ib. On an ascending grade of one foot in ;he hun- dred, it is increased one per cent, on 6,000 Ibs; that is, 60 Ibs: making the entire traction on that grade 180 Ibs. On a grade of two feet in the hundred, we must add 120 Ibs; on a grade of three feet to the hundred, 180 Ibs; and on a grade of four feet to the hundred, 240 Ibs: making the total traction on the last grade, say of one foot rise in twenty-five, 360 Ibs : that is, three times the draught ex- erted on a dead level. But now, let us suppose two horses, on an ordinary earth road, to draw one ton or 2.000 Ibs. The traction, on a level, is 120 Ibs; the same as that of the load of 6,- OOO Ibs on the level p'ank road. But on arriving at a hill, does the draught increase in the same proportion as on that C.OOO Ibs ? Let us see. On an ascending grade of one fool in a hundred, the increase, being one per cent, on the load as before, is, in this case, but one per cent, on 2.000 Ibs, or 20 Ibs; and on a grade f four feet to the hundred, or one foot in twenty-five, it is but 80 Ibs. This added 10 120 Ibs., the traction on a level, gives but 200 Ibs. The Joad, instead of being trebled, as on a plank road at the same grade, is not even doubled.' it is increased only by two- thirds of the original amount. With a traction of 120 Ibs to the ton, on a level, (as on an ordinary earth roaJ) it would require an ascending grade of 12 feel in the 100, or one foot rise in eight and a third, to treble the traction. It follows, that a grade of I foot in 25 is as steep in pro- portion for a plank road, as a grade of one foot in e ght and a third is, for a common earth road; or. in other words, that the former grade increases the draught on a Jo id in the same proportion on a plunk road, as thfe latter does on a common earth road. This happens , not because the actual increase of draught caused by an ascent, is greater, on any given load, at any given grade, on a plank road than on a common earth road: it is not greater; a horse can pull up any grade on the plank more than he can on the earth : but only because the increase bears a greater proportion to the level traction in the one case than in the other; or, otherwise expressed, because the per centage on the heavy load which a horse can draw on the plank road is greater than the same per centage on the lighter load which is all he can draw on the earth roid. The plank, as a surface-material for a road, overcomes a great portion of the friction, whether on a level or on a hill; but it cannot overcome the principle of increase on ascents, which remains unchanged whether the ascending grade be laid with the smooth and costly iron rail, or con- stitute part of the line of the roughest and muddiest high- way. On a railr ad the influence of this principle is felt, far more sensibly, even, than on a plank road; as any one may have remarked, who has seen a horse drag, with ease, a car along a level portion of a railway, but suddenly ar- rested by the increased traction, on arriving at an ascent so gentle as to be hardly perceptible to the eye. As a horse, on a railroad, can draw four times as heavy a load as on a plank road, an ascent of a single foot in a hun- dred, on the former, adds the same proportion to the draught of the load, as an ascent of four feet in a hundred, on the latter. In Gayffier's " Manual of Bridges and Highways,"* tho extra exertion which a horse m:y properly be required *?age 9. occasionally to put forth, beyond what he can regularly and constantly draw, is put at double his usual exertion. Oiher writers set down the proportion at three times. This latter limit should not be exceeded; and it is desirable to keep somewhat within it. If Gayffier's estimate be made the basis of a rule as to grades ; that is, if a horse, at the steepest hill, should not be required to exert more than double his ordinary exer- tion on a level ; then the maximum grade on a plank road should not exceed two fuot rise in a hundred, or one in fifty; since, at that grade, the traction is twice as great as on a level. And if we look to perfection in laying out such roads, it is undoubtedly desirable, that grades thereon should be limited to one fool rise in fifty as a maximum. That slope constitutes, in theory, what is technically termed the ''angle of repose;" that is, the grade upon which a wagon or carriage descending would require from the horses, no exertion either to draw it down or to hold it back. In practice, however, with ordinary wheels in usual order, I think that a hill with a slope of one in forty will more nearly fulfill the above . undiiions; or, in other words, that a descent of one in forty on a plank road, is that degree of steepness on which if an ordinary wagon or carriage be placed, it will remain stationary; but if it receive a slight impulse, it will descend slowly by its own weight. But to attain theoretical perfection; to limit the max- imum grade of a plank road to 1 in 50, or even to 1 in 40, commonly demands a cost, which, on an ordinary line of road, would not be justified. The second estimate alluded to, namely that a horse should not be required, on extra occasions, to put forth more than three times his usual exertion, furnishes a rule more easily followed out in practice. On a grade of 1 in 25, the increased traction being four per cent., while the trac- tion on a dead level is two per cent., the load is just tre- bled. And to this limit, in my opinion, the grades on plank roads should, in all cases where it is practicable at any reasonable expense, be restricted. It would, indeed, be better that that limit should not be reached. Gillespie recommends one foot rise in thirty as a just medium be- tween too great expense and too steep grades. This is the limit adopted on the Mount Vernon and New Harmony road. Nothing short of a lack of funds, or a heavy per centage of additional cost in construction, should prevent its adoption on all plank roads. At that limit, the traction on ihe steepest hill will somewhat exceed twice and a half what it is, on a level. Nor let it be imagined, that it is of little moment, whether, on but one hill on a long line of road, the max- imum grade be departed from. A single heavy grade, especially if it be of considerable length, tends to dimin- ish, for all practical purposes, the power of draught on the entire line. It is useless to draw to the bottom of a hill a load which the horses employed cannot drag up it; for the expedient of keeping, at the foot of such an ascent, spare hotses to hire, though sometimes adopted in England, is troublesome, and will not be resorted to in this country. A single over-steep grade, then, becomes the one weak link in a strong chain; diminishing, in practice, the available strength of the whole line. Upon the same principle, it is desirable, that the grade on the longest hill occurring on any road, should not reach the maximum limit. That becomes, as it were, the pinch- ing point of the road; the point where a greater amount of sustained exertion is required from the horses, than at any 46 other. And if, therefore, at thai point, we diminish the exertion, the general capability of the whole road is thereby increased. Thus, on the Mount Vernon road, the longest hill is that descending into the valley in which Harmony is situated. Its length, as has already been slated, is half a mile, and its grade averages but 1 in 37. Had it been run up to the maximum limit of 1 in 30, the exertion there demanded of the horses would have been greater than on any other hill throughout the road. As it is, by making gen'.ler the grade, the length of the ascent is, as it were counteracted, and the total amount of fatigue to the horses is probably not greater than on a hill only quar- ter of a mile long, graded throughout to a slope of 1 in 30. The shorter the hill, the less the evil of a heavy grade It is proper, however, here to remark, that, on many of the New York plank roads which seem to have satisfied the public, the above recommendations have been widely departed from. On very few of them has the maximum grade been set as low cs 1 in 30; many of them have oc- casional grades running as high as one foot rise in a rod, or about 6 feet in 100, and there are examples of slv rt pitches with a grade of 1 in 10; even upon which, it is said, horses do not slip. Sometimes these heavy grades are almost necessitated by the character of the country through which the road runs. The plank road, for example, from Cazcnovia to Chittenango, winds down a precipitous mountain glen and passes a water-fall 140 feet high; the entire descent, in about ten miles, being 800 feel. Its occasional grades, therefore, of a foot rise in a rod, are only what might be expected on such a line. On other roads, however, where the line was comparatively favorable and where a giade of 1 in 30 could have been attained at small extra cosi, I found the limit of 1 in 20 adopted as "good enough." 47 , Before \ve imitate such an example, !RI us compare the practical results from the grade of 1 in 30, the maximum on our Mount Vernon road, and that of 1 in 16^, the max- imum on the Cazenovia and many other New York roads. Put the load at one ton. Then, On the Mount Vernon Road, Ibs. Traction of one ton, on a level, - - 40 Increase on grade of 1 in 30, 3 per cent, on 200 Ibs. 6&1 Total traction of one ton on steepest hill. - 106| But on the Cazenovia Road, Ibs. Traction of one ton, on a level, as before, - 40 Increase on grade of 1 in 16i, say 6 per cent, on 2000 Ibs. - - -" - - 120 Total traction of one ton on steepest hill, 1(>0 The draught in the one case is fifty per cent, more than in the other. Up the steepest grade of our road, there- fore, a team could draw three tons with the same ease as it could draw two tons up the steepest jjrade of the Cazeno- via road. Road grades are sometimes measured by degrees, indi- cating the angle of ascension, instead of being measured bv the number of feet perpendicular rise for each hundred feet horizontal. A slope or grade of one degree corres- ponds to 1 fool rise in 57, or about a foot and three quar- ters rise in 100: a grade of two degrees corresponds to 1 in 29, or about three and a half feet in 100: a grade of three degrees corresponds to 1 in 19. or about five feet and a quarter in 100: and a grade olfour degrees corresponds to 1 in 14, or about 7 feet rise in 100. This laiter grade is, 1 believe, the maximum on ihe Cumberland road where it crosses the Alleghenies. On the Syracuse and Central Square plank road, already noticed as the first ever con- structed in the United States, one hill was left with a grade exceeding the above; namely of 1 in 12, or about 8 feel rise in a hundred; but the length of this steep ascent was thirty or forty rods only. Such a grade on a plank road compels a horse to put forth five times the exertion demanded from him on a level. It need not be added that a horse can never, pro- fitably or safely, be called on for such an exertion ; unless, indeed, we suppose his load on a level, to be but half of that which, on a properly graded road, he ought to draw. The practical effect is to reduce, to one half what they should be, the capabilities of the road. If plank roads are to be useful and profitable servants to us, we must not suffer them to be shorn of half their strength. CHAPTER VI. CONSTRUCTION. EXCAVATION AND EMBANKMENT. Where the natural surface alon ihe stockholders as great as Plank Roads. And it is my opinion, that their pecuniary success, based on a solid foundation, will continue and will increase. There are about 180 chartered railroad companies in the United States; and their roads exceed, in aggregate length, 6,600 miles. Rated as single tracks, these have cost up- wards of $20,000 a mile. Of these railroads less than one-third (the exact proportion is very nearly 30 per cent.) pay dividends over six per cent. Macadamized roads have usually been less profitable to their stockholders than railroads. 1 have not now at hand statistics sufFieientto furnish a reliable estimate of theiraver- age cost and ordinary profits. The Cincinnati and Colum- bus turnpike cost about $5000 a mile; and the current re- pairs, without reckoning renewal of bridges, are from $300 to $400 a year for each mile. The cost of this road, is, I believe, under the avefage; and the repairs do not exceed it. I think it would be safe to set down the cost of a Macadamized road as averaging three times as much as that of a plank road; and the annual repairs, as three limes as great as those of the plank road including xhe sum necessary to be annually set aside to renew the superstructure. When we consider that a macadamized road does not afford as much as two-thirds the power of draught which is gained by a plank road, it will not appear surprising that the former has usually been an uoprofita- 85 b!e investment. Some of the principal lines in Kentucky do not pay over 2 or 3 per cent, a year. Between two such points as Georgetown and Frankfort, the shares, originally of .$100, have sunk below $20 each. Very different is the result in the case of plank roads. 1 have already stated, that, on my recent trip to Western New York, I had not been able to hear of one among the numerous plank roads recently constructed there, iu full operation, that paid dividends of less than ten per cent. Some of them divide 20, some 25, 30 and even 40 per. cent, of yearly profit over expenses. The most remarka- ble of these, perhaps, is the plank road from Rome to Utica, competing with the Erie Canal, the Buffalo and Albany Railroad and a free turnpike and paying twenty- ftce per cent, of annual dividends! If a report which has reached me in what seems a reli- able form, regarding one of the Plank Roads terminating in Chicago be correct, the result there exceeds anything of which I have heard in New York. The tolls on that road are said to have repaid the entire cost of its construction and a per centage over, in a single year! The data whereby to calculate, with reliable accuracy, the profits that may be anticipated on any projected line of road, are few and simple. In the previous chapters I have supplied most of them ; as the cost of road (chapter 10) which I have put, under ordinary circumstances, at 82000 a mile; the annual re- pairs (same chapter) put at $10 a year per mile; the an- nual pay to gate-keepers (chapter 8) put at $120 a year, or say $24 a year per mile. There remains the annual expense of management. This depends, in a measure, on the length of the road. Call it 15 miles, which may be a fair average. The offi- 86 ces of Treasurer and Secretary may, if a suitable penon can be found, conveniently be united in one; and a fair salary would be $100 a year; the Syracuse and Central Square road pays but $75 a year, and its annual receipts exceed $8,000. It is not customary to pay any other offi- cers, neither President nor Directors, except their actual travelling expenses, if called from a distance to attend meetings of the Board, or on other official business. The office of acting Commissioner is usually paid during the construction of the road, when it often employs the greater portion of the officer's time ; but not after its completion. There is no current expense beyond those already enu- merated except small incidentals, as stationary. I put down the annual current expenses, then, of a road of 15 miles, as follows: ANNUAL CURRENT EXPENSES; PLANK ROAD OF 15 MILES. 3 Toll-gates, at $120 each, $360 Repairs, at $10 a year, per mile, - 150 Salary of Treasurer and Secretary, - 100 Travelling expenses of Board and Incidentals, say 65 Total for 15 miles, - $675 Divide this sum by 15, and we have the annual expense per mile, Forty-Five Dollars. On roads very much travelled, where gate-keepers' sal- aries must be raised, the average will be greater. So, also, on very short roads, where the gates may happen to be closer together and the per centage of management a little heavier. But, in a general way, from $40 to $50 a year per mile ought to pay the entire current expenses of the road. Now if we put the cost per mile at $2000 and the annu- 87 al expenses (without renewal) at $45 yearly, it follows, that if, on each mile, an annual toll of $120 t $45, that is to say of $165, be received, the stock of the road will pay six per cent, annual dividends. But $165 a year is & little more ihan forty -five cents per day. As the toll on a two-horse team is two cents per mile, it follows, that an average of about 23 such teams will make up ihe necessary amount. The general result, then, is, that AN AVERAGE OF TWELVE TWO- HORSE TEAMS PASSING ALONG A PLANK ROAD EACH WAY EACH DAY, WILL RETURN A CLEAR DIVIDEND OF SIX PER CENT. TO THE STOCKHOLDERS.* I have already stated (chapter 1) that on xhe first plank road ever constructed in the United States, the number of teams increased in a single year, from 75 a day to 250; that is, it was more than trebled ; and I have shown, that the cause of what seems so astounding an increase is gen- eral, not local ; and is explained by the fact, that the road creates its own business. I am very sure that it would be a low and safe calculation, on any ordinary line of road, to estimate the increase the first year, at double. If, then, by stationing men along the line of any old, earth road, it be ascertained, by a sufficient number of averages, that the daily travel upon it, in its present unimproved condi- tion, reaches the amount of six teams each way, each day, (say an average of a team each way every two hours throughout the day,) then I predict, that a plank road, con- *0r the equivalent of 12 two-horse teams, in the various travel along a road. There will be one-horse teams, horsemen, droves of cattle, &c.; and, probably, some few four-horse teams; but of these latter very few until wagons are constructed expressly for the plank road. In New York I do not recollect to have met, on a plank road, a single wagon drawn by four horses. 88 v structed along that line will pay six per cent, after the first year. And I believe, that, in many cases, the calculation might be a safe one, where the average travel is but four teams each way daily. As to the reiresval of the superstructure (say at the end of twelve years, on a white-oak road,) it may be safely set down, that the increase of travel after the first year will overpay that. Calculating at the above rates, it will be found, that an average of twenty teams each way each day will give a dividend of twelve per cent.; of thirty teams, a dividend of over nineteen per cent.; of forty teams, a dividend of up- wards of twenty-nine per cent.; and so on. But on reach- ing this latter amount of travel, there would, probably, be a small increase of the current expenses. It ought to be remembered, however, (as noticed in chapter 7) that the period when plank is worn out and re- newal becomes necessary, may vary as much as one to three, according as the road is constructed on a permanently solid bed, or suffered gradually to become hollow and water charged. On this materially depends the dividends that will be realized. Geddes* estimates, that a mile of a hemlock plank track will earn, over and above repairs and cost of collecting tolls, from $2,500 to $3,000 before it is worn out. If this be a correct estimate, a while oak track will pay from $4,000 to $5,000 ; say at least double the entire ccst of the road. On a road, then, with travel sufficient to wear out a white-oak track in wo years, the dividends should be *In his pamphlet containing the General Plank Road Law of the State of New York, ank some appended observations, p. 35. 100 per cent.;* if in four years, fifty per cent,, and if in 8 years, 25 per cent, over expenses. I give this, however, as a rough estimate only; for the expenses on a road on which the plank wears down : n two years (though annu- ally greater than on a less travelled road) will not, in these two years, amount to as much as the eight years' expen- ses on a road, where the plank lasts that length of time. If the estimates in this chapter touching the profits of plank roads seem to any one too favorable to be trust- worthy, I remind him that the data upon which they are based, have been furnished, one by one, in the preceding pages; that these data are few and simple, and easily scrutinised; so that with but little trouble, he may verify the calculations fur himself. CHAPTER XII. GENERAL CONCLUSIONS. No bargain properly merits the name of a good one unless it is advantageous to both the contracting parties. No branch of trade will be permanently profitable, unless its profits are shared alike by the producer and the consu- mer. And thus a public improvement, to win favor and general adoption, must be productive of pecuniary benefit, direct or indirect, or both, as well to those who use as to those who construct it. Any species of improvement *0n such a line there ought to l>e a double track ; but there is gain, rather than loss, in this, on the above estimate ; since the double track will wear twice as long as a single one, and will not cost twice as much. 90 which eminently fulfils that condition, will become a pub- lic favorite; and, in our land of enterprise and energy, it will multiply rapidly. I think, that, in the preceding pages, I have shown good reason for the opinion, that, in our Western country, the plank road is an improvement of the above character; that the rate of toll which will amply remunerate the stock- holder, yielding him 10, 20, 30 or 40 per cent, supplies n the teamster, or to the traveller, a privilege, in the form of road improvement, intrinsically worth five or ten times what it costs.* Over the railroad, except for great lines of communica- tion connecting one section of country with another, the plank road, to atone for less speed and power, has many advantages. Its prime cost is about one tenth that of a railroad, and it is consequently within the reach of moderate means. Two small towns, 10 01 20 miles apart, can connect them- selves by a plank road, without going into debt. Any neighborhood of thrifty farmers can construct such a road through their settlement, yet ask no aid of foreign capital. This is a great advantage, tf is always, in my judgment, a policy of doubtful propriety, that a County or a Town should issue to a large amount, nnd sell often at a heavy discount, their corporate bonds, for the sake of reaching an improvement beyond the present means of the commu- *I stopped several teamsters on the New York plank roads, and in reply to my enquiries, the usual answer was, that they had rather pay three times the amount of the present toll than dispense with the plank road. The toll, in that State, is but \% cents for a two-horse team instead of two cents, as with us; but, on the other hand, their grades, often reaching 1 in 16, render their roads less valuable improvements than many of ours. 91 nity that constructs it. The danger, indeed, is less than when States resort to similar expedients ; yet, I shall re- joice, if, of the numerous railroads now in progress among us, some do not prove too unweildy for those who have undertaken them. The plank road is not only the adjunct, but may become the precursor, of the rail- road. Nor, even as regards the ultimate effects upon the trade of a town or a city, it is certain, that the most pros- perous railroad exerts a more beneficial influence than several radiating plank roads. I found the impression prevalent among the business men in Syracuse, that the plank roads terminating in that town had already been of more commercial advantage to it, than the Buffalo and Albany railroad, with all its speed and power, and the vast business it does. Whatever a plank road brings to a town remains there: what the railroad brings often passes through, without delay or discharge. Again, after a railroad is completed, the task of its board of Directors is but commencing. Its current business re- quires both experience and capital, to manage it well ; and jpon its judicious management, quite as much as upon the judgment originally displayed in the selection of a profita- ble line of road, depends the pecuniary success of the en- terprise. In estimating the value of railroad stock and the probable dividends therefrom, the business character of the President and of the Directory is an important item. And inasmuch as these officers may, at any lime, lose their situations, and it must be uncertain by whom they will be replaced, there ever is an uncertain element in all our calculations regarding prospective railroad profits. Not so, as to Plank Roads. The road once completed and its toll-gate-keeper;: stationed at their places, there is an end to all labor or responsibility, other than the trifling 92 care for incidental repairs, and the collection, at stated times, of the gate-money. There is no President, with ' his salary of three thousand a year; there are no stations costing their thousands or tens of thousands; no work- shops to build and keep up ; no cars, no locomotives, to buy and repair and replace; no conductors, firemen, brake- men and a long et cetera of hired operatives to employ. The Directors have but to say to the public : " The road is ready for you ; use it." And the same teamsters and the same wagons, and the same horses that now struggle through mud and mire will take their places, at once, upon its smooth and graded surface. If the line is judiciously selected and the road properly constructed, it must pay- There is no contingency of good or bad management corn- ing in as a disturbing element in the calculation of i;s expected profits. Here, in our Western country, where practical talent capable of grasping and combining and harmonizing the complicated details of an extensive business, is not always to be had, the above considerations must be admitted to have great weight, in determining the relative value of stock, as between railways and plank roads. As to Macadamized roads, they must now be considered out of date, except in locations where plank cannot be had, at any reasonable rate. Costing three limes as much both to construct and to repair, as plank roads, their capa- bilities, even when in good repair, are not greater as com- pared to those of the latter, than as two to three. When in bad repair, as many of them are habitually kept, they are no better than the common earth-road; sometimes worse. These common eunh-roads will soon cease to be used, in our Western country, except as neighborhood and cross 93 roads, where the population is sparse and the amount of travel is small. The prejudice now existing against the principle of road-toll will die away, and be replaced by wonder that the present unjust system of road taxation should have been tolerated so long.* Those who use will pay, as they should do; and men who do not use and are not benefitted, will not be called off, for others' advantage, from that daily labor which is their sole dependance for support. *I commend to those among my fellow-citizens of Indiana, who may be disposed to condemn the system of road-toll, and to prefer, in its atead, the provisions of the existing law for keeping our State and County highways in repair, a more careful perusal of that law than is usually bestowed on sucli enactments. It will be found among the general laws passed during the session of 1848-9, commencing at page 100. Section 101 of that law (page 113) provides, that " the Board of Coun- ty Commissioners may, at their March session in each year, assess as a road-tax on all personal and real estate subject to taxation for County and State purposes, a sum not exceeding ten cents on the one hundred dollars of the appraised value thereof, or they may, at their discretion, dispense with any tax on real and personal property." And section 106 (page 114) further provides, that "whenever the County Commissioners of any county shall dispense with any road tax on real and personal property, it shall be the duty of the Supervisors cf the road districts in such county to require and notify the inhabitants of their respective districts liable to perform road labor (that is, as a general rule, all male inhabitants of the district between the ages of twenty -one and fifty years,) to work on the highways whenever, and such number of days in each year, as shall be necessary to put and keep the highways of *uch district in good repair, and at such time or times as shall be best adapted to the accomplishment of such object, assessing such labor equally upon all the inhabitants liable thereto." No restriction as to the amount of labor; no distinction made between the man who owns ten thousand acrejs and the day-laborer who never called a foot of soil his own in his life ; whose only property is his labor, worth fifty or seventy-five cents a day to him ; who has neither horse nor wagon, nor carriage to cut up the roads, nor real estate to be ad- vanced in value by opening or improving them. And all at the discre- tion of the Commissioners, who take money out of their own pockets, when they impose a heavy real-estate tax. 94 There is but one difficulty that may stand in the way of the rapid and universal spread of this improvement; and that is, bad legislation on the subject. Kentucky will never see plank roads multiply within her borders until her Legislature shows a liitle more common sense than it has hitherto done, in framing a general law on the subject. The present law, (see Appendix) permits a rate of toll full twice as high as that of New York, and nearly twice as high as that to which we are limited in Indiana; and then imposes on the stockholders the condition, equally absurd and mischievous, that they shall not divide over ten per cent, annual dividends. Here we have the proper restriction, which would effec- tually protect the public, omitted ; and for it is substituted another, of which the only effect, in practice, is, either to destroy enterprise or to encourage evasion of the law. This ten per cent, restriction was tried in New York and repealed. It was found, that when men were disposed to conform to it, to the letter, it effectually discouraged the making of plank roads at all ; and that where these roads were made, its provisions were uniformly evaded by lav- ishing unnecessary expenses on the road, or, more fre- quently, extravagant salaries on its officers. There would be as much justice and reason, when a merchant applies for license to keep store, in granting that license only on condition that all his nett profits over ten per cent, should be paid into the State treasury, as in decreeing that the business of road-making, no matter how well managed, shall yield ten per cent, profit only. This is a direct pre- mium on unthrift and extravagance. Doubtless the public require protection, in such a case, against the unreasonable demands of grasping stockhold- ers. Such protection they ought to have ; but such pro- 95 lection, by the present Plank Road law of Kentucky, they have not. They may be required to pay five cents toll per mile for a four-horse wagon ; and ten cents per mile for every score of cattle driven along their roads. That is an imposition. Two and a half cents, or at most three cents, is all that ought to be paid for a four-horse team, and three or four cents for a score of cattle. A restriction to low rates of toll is the proper protection, and the only possible protection. The other paralizes enterprise, with- out protecting industry. Wherever wisely considered, judicious laws prevail, the PLANK ROAD will become the great improvement of the West. It will remain an element, second only to the steam navigation of our noble rivers, in the prosperity, hitherto unexampled in human history, that has blessed, and is blessing, our favored country. APPENDIX; %* Thr. New York General P'ank Poad Lnw is given, as being the most complete yet pa.-std, and as having iurnis' ed the original, of which parts have been incorporated into the Plank Road Laws of most other States. The opinion of Judge Gjidley settles some important points of law in connection with tlii.s f-pcc i<-a oi improvement; a^, tluit a plank road or any other toll* (I road, located on the line of an old highway, still re- mains a puWic hi^hwny : and that for any damage, or inconvenience suf- fered by any one living on the line of tuch a road by its proper andne- eestarijccns'r:ict:fii i.r rvyw/r*, he can recover no damages; but fur any unusual or unreasonable exercLe of this ri^ht to constiuct and repair, the Company is liable. NEW YORK PLANK ROAD ACT. CHAPTER 210 LAWS OF 1847. AN ACT to provide for the incorporation of companisa to construct plank roads, and of companies to construct turnpike roads. Passed May 7, 1847. The people of the State of New York, represented in Senate and As- sembly, do enact as follows : 1. Any number of persons not loss than five, may be formed into a corporation, for the purpose of constructing and owning a plank road or a turnpike road, by complying with the following requirements : Notice shall be given in at least one newspaper, printed in each county through which said road is intended to be constiucted, of the time and place or places where books for subscribing to the stock of such road will be opened ; and when stock to the amount of at least five hundred dollars for every mile of the road so intended to be built, shall be in good faith subscribed, [and five per cent, paid thereon, as hereinafter required,]* then the said subscribers may upon due^and proper notice, elect directors for the said company ; and thereupon, they shall severally subscribe ar- ticles of association, in which shall be set forth the name of the com- pany, the number of years that the same is to continue, which shall not oxceed thirty years from the date of said articles, whether it is a plank road or a turnpike, which the company is formed to construct; the amount of the capital stock of the company ; the number of shares of which the said stock shall consist ; the number of directors, and their names, who shall manage the concerns of the company for the first year, and shall hold their offices until others are elected ; the place from and to which the proposed road is to be constructed ; and each town, city and village into or through which it is intended to pass, and its length, as near as may be. Each subscriber to such articles of association, shall subscribe thereto his name and place of residence, and th-3 number of * The words " and five per cent, p-iid thereon, as hereinafter required," repealed by i hapter 230, Laws of 1849. 7 shares of stock taken by him in said company. ' ^The said articles of association may, on complying with the provisions of the next section, be filed in the office of the secretary of state, and thereupon, the per- sons who have subscribed, and all persons who shall from time to time become stockholders in such company, shall be a body corporate, by the name specified in such articles, and shall possess the powers and privi- leges, and be subject to the provisions contained in titles three and four of chapter eighteen, of the first part of the Revised Statutes. 2. Such articles of association shall not be filed in the office of the secretary of state, until five per cent, on the amount of the stock sub- scribed thereto, shall have been actually and in good faith paid, in cash, to the directors named in such articles, nor until there is endorsed there- on, or annexed thereto, an affidavit made by at least three of the direc- tors named in such articles, that the amount of capital stock required by the first section has been subscribed, and that five per cent, on the amount has actually been paid in. 3. A copy of any articles of association filed in pursuance of this act, with a copy of the affidavit aforesaid endorsed thereon or annexed there- to, and certified to be a copy by the secretary of this state or his deputy, shall in all courts and places be presumptive evidence of the incorpora- tion of such company, and of the facts therein stated. 4. Whenever any such company shall be desirous to construct a plank road or a turnpike road through any part of any county, it shall make application to the board of supervisors of such county at any meeting thereof legally held, for authority to lay out and construct such road, and to take the real estate necessary for such purpose ; and the application shall set forth the route and character of the proposed road as the same shall have been described in the articles of association filed as aforesaid. Public notice of the application shall be given by the company previous to presenting the same to such board by publishing said notice once in each week for six successive weeks in all the public newspapers printed in such county, or in three of such newspapers if more than three are published in such county, which notice shall specify the time when such application will be presented to such board, the character of the pro- posed road, and each town, city and village in or through which it is proposed to construct the same. 5. If such company shall desire a special meeting of the board of su- pervisors for hearing the same, any three members of such board may fix the time of such meeting, and a notice thereof shall be served on each of the other supervisors of the county, by delivering the same to him personally, or by leaving it at his place of residence at least twenty days before the day appointed for such meeting. The expenses of such special meeting and of notifying the members of such board thereof, shall be paid by such company. 6. Upon the hearing of said application, all persons residing in such county, or owning real estate in any of the towns through which it is proposed to construct such road, may appear and be heard in respect thereto. Such board may take testimony in respect to such application, or may authorize it to be taken by any judicial officer of such county, and it may adjourn the hearing from time to time. 7. If after hearing such application, such board shall be of the opin- ion that the public interests will be promoted by the construction of such road on the proposed route as shall be described in the application, it may, if a majority of all the members elected to such board shall assent thereto, by an order to be entered in its minutes, authorize such company to construct such a road upon the route specified in the application, and to take the real estate necessary to be used for that purpose, a copy of which order certified by the clerk of such board the same company shall cause to be recorded in the clerk's office of such county before it shall proceed to do any act by virtue thereof. 8. Whenever any such board shall grant such an application, it shall appoint three disinterested persons who are not the owners of real estate in any town through which such road shall be proposed to be constructed, or in any town adjoining such town, commissioners to lay out such road ; the said commissioners after taking the oath prescribed by the constitu- tion shall proceed without unnecessary delay to lay out the route of such road in such manner as in their opinion will best promote the public in- terest; they shall hear all persons interested who shall apply to them to be heard, they may take testimony in relation thereto, they shall cause an accurate survey and description to be made of such route and of the land necessary to be taken by such company for the construction of such road and the necessary buildings and gates, they shall subscribe such survey and acknowledge its execution as the execuiion of deeds is re- quired to be acknowledged, in order that they maybe recorded, and they shall cause such survey to be recorded in the clerk's office of such county. If such company shall intend to construct its road continuously in or through more than one county, such application shall specify the number of commissioners which the company desire to have appointed to lay out such road, which shall not exceed three for each county, and an equal number of such commissioners shall be appointed by the board of supervisors of each county in or through which it shall be proposed to construct such road, but the whole number of such commissioners shall not be less than three, nor without the consent of such company shall it exceed six, unless the number of counties in or through which it is pro- posed to construct such road shall exceed that number. And the com- missioners so appointed shall lay out the whole of such road, and shall make out a separate survey of so much thereof as lies in each county; 100 which shall be subscribed and acknowledged as aforesaid and recorded in the county clerk's office of such county.* Such company shall pay each of the said commissioners two dollars for every day spent by him in the performance of his duties as such commissioner, and his necessary expenses. 9. No such road shall be laid out through any orchard to the injury or destruction of fruit trees, or through any garden without the consent of the owner thereof, if such orchard be of the growth of four years or more, or if such garden has been cultivated four years or more before the laying out of such road, nor shall any such road be laid out through any dwelling house or buildings connected therewith, or any yards or enclo- sures necessary for the use and enjoyment of such dwelling without the consent of the owner, nor shall any such company bridge any stream where the same is navigable by vessels or steamboats, or in any man- ner that will prevent or endanger the passage of any raft of twenty -five feet in width. 10. No plank road shall be made on the roadway of any turnpike company without the consent of such company, and any plank road company formed under this act shall have power to contract with any turnpike company for the purchase of the roadway or part of (he road- way of such turnpike company on such terms as may be mutually agreed on ; whenever a plank road shall be made as provided in this act on or adjoining the route of any turnpike road, the company owning such turnpike road is authorized to abandon that portion of their road on or adjoining the route of which a plank road is actually constructed and used; but nothing herein contained shall be so construed as to prevent any plank road from crossing any turnpike road, nor any turnpike road irom crossing any plank road. 11. The route so laid out and surveyed by the said commissioners shall be the route of such road, and such company may enter upon, take and hold, subject to the prpvision of this act, all such lands as the said sur- vey shall describe as being necessary for the construction of such road and the necessary buildings and gates. But before entering upon any of such lands, the company shall purchase the same of the owners thereof, or shall, pursuant to the provisions of this act, acquire the right to enter upon, take and hold the same. 12. If any owner of such land shall from any cause be incapable of selling the same, or if such company cannot agree with him for the pur- chase thereof, or if after diligent inquiry the name or residence oi any such owner cannot be ascertained, the company may present to the first * By Chapter 360 of the laws of 18-18, this section is so amende* as to au- thorize the commissioners to determine thedistance that the outer limits of Uie road shall be apart, not however to be more thun four rods. 101 judge or county judg? of the county in which the lands of such owner lie, a petition setting forth the grounds of the application, a description of the lands in question and the name of the owner if known, and the means that have b^en taken to ascertain the name and residence of such owner, if his name and residence have not been ascertained, and pray- ing that the compensation and damages of the owner of the lands de- scribed in the petition may be ascertained by a jury. Such petition shall be verified by the oaths of at least two of the directors of the company, and if it shall alludge that the name or residence of any owner is un- known, it shall be accompanied by affidavits proving to the satisfaciion of the said judge that all reasonable efforts have been made by the com- pany to ascertain the name and residence of any owner whose name or residence is unknown. 13. On receiving such petition, the said judge shall appoint a time for drawing such jury, which shall be drawn from the grand jury box of tlie county by the clerk thereof, at his office. At least fourteen days notice of the time and place of such drawing shall be served personally upon each owner of lands described in the petition, who shall be known and rcsiie i;i the county where the lands lie or by leaving the same at his residence, and such notice shall be served on ah other owners in the manner aforesaid or by putting the same into the post office directed to them at their respective places of residence and paying the postage thereon, or by publishing the same once in each week tor two successive weeks in a newspaper printed in such county, the first of which publica- tions shall be at least fourteen days before such drawing. 14. In case any lands destiioed in such petition shall be owned by a married woman, infant, idiot or insane person, or by a non-resident of the s ate, the said judge shall appoint some competent and sui.able per- son having no interest adverse to such owner to take care of the interests of such owner in respect to the proceedings to ascertain such compensa- tion and damages. And all such notices as are required to be served on any owner resiling in such county, shall be served upon the person so appointed in like manner as on such owner; but any ftr.-oji so appoint- ed to take care of the interests of any such non-rcsiaent may be super- seded by him. 15. The said judge shall attend such drawing and shall decide upon any challenge made to any juror drawn by any person interested^ Twenty-four competent and disinterested jurors, and a a many more as the said judge shall direct, shall be drawn; the clerk shall make, certify and deliver to the judge and to any party requiring the same a list of them, and the ballots drawn shall bo returned to the box. The said judge, if he shall deem it necessary, may at any subsequent time direct the drawing of an additional number of jurois, and thjy shaU be dr^w.i, 102 and all proceedings in relation to such drawing shall be had in the man- ner hereinbefore provided. Before proceeding to draw any such jury the company shall furnish to the said judge proof by affidavit satisfactory to him, of the time and manner of serving and publishing notice of such drawing, which affidavit shall be filed in such clerk's office ; and no such jury shall be drawn unless it appear to the satisfaction of the said judge that the provisions of this act in respect to giving notice of such draw- ing have been complied with. 16. From the jurors so drawn the said judge shall draw as many as he shall deem necessary to secure the attendance of twelve, and he shall issue liis precept directed to the sheriff" cf such county, either of his de- puties or any constable of such county to summon the jurors so drawn by the said judge, to attend at the time and place therein specified to ascertain such compensation and damages. And he may from time to time, in case of the absence or inability to serve of any juror directed to be summoned, draw and direct to be summoned as aforesaid, as many as may be necessary in his opinion to secure the attendance of twelve. 17. Every juror named in any such precept, shall, at least four days before the day therein specified for his attendance, be summoned person- ally, or by leaving at his residence, a notice containing the substance of such precept. The officer serving such precept, shall return it to the said judge, with an affidavit of the manner of serving the same, and of the distance necessarily traveled by Mm for that purpose ; and such offi- cer shall receive for making such service, six cents a mile for the dis- tance so traveled. 18. Every juror so summoned, who shall neglect or refuse to attend or serve, in pursuance of such summons, shall be liable to the same penal- ties, as in case of such neglect or refusal of a person duly summoned as a juror in a court of record, and may be excused by the said judge from attending or serving, for reasons for which such juror might be so ex- cused if summoned as a juror in such court. Every juror attending, shall be entitled therefor to one dollar a day, and his reasonable and ne- cessary expenses to be paid by the company. 19. On the application of any party interested, any judge or justice of the peace, may issue a subpoena requiring witnesses to attend before such jury, and such subpcena shall have the same force and effect; and wit- nesses duly subpoenaed by virtue thereof, and refusing or neglecting to obey the same, shall be subject to the same penalties and liabilities as though such subpcena were issued from a court of record, in a suit pend- ing therein. 20. The time and place of meeting of the jury, to ascertain such com- pensation and damages, may be fixed by the said judge, by an order to be made by him at any time after receiving such petition ; and notice 103 thereof shall be served on the owners whose lands are described in the petition, as follows ; on any owner residing in the county, or within fif- teen miles of the lands in question owned by him, personally, or by leaving the same at his residence, at least fourteen days before the time so fixed ; on any other owner residing within this state, and whose resi- dence is known, in the manner aforesaid, or by putting the notice into th'j post office directed to him at his place of residence, and paying the postage thereon ; on any owner residing out of the state, and not within fifteen miles of the lands in question, owned by him, by putting the notice in the post office directed and paid as aforesaid, at least forty days before the time so fixed ; and on owners whose residecce is unknown, by publishing the notice once in each week for six successive weeks, in one of the public newspapers printed in the county. 21. The jurors so summoned shall meet at the time and place fixed by the said judge for that purpose, and shall be sworn by him to diligently enquire and ascertain the compensation and damages which ought justly to be paid for the land described in the petition, or for those of them in respect to which they shall be called upon to enquire, to the owners thereof, and for taking the same for such road, and faithfully to perform their duty as such jurors, according to law. 22. The said judge shall attend such jurors, shall administer oaths to witnesses called before them, shall take minutes of the testimony given, and admissions of the parties made before them, shall advise such jury as to the law applicable to any case that may arise, shall receive, certify and return to the county clerk's office, the verdicts agreed upon by them, and while so attending, shall have all the powers possessed by a court of record, when trying issues of fact joined in civil cases. 23. The jury, after hearing the parties, and viewing the lands in ques- tion, in each case, shall, by a verdict, ascertain and determine the com- pensation and damages that ought to be paid to the owner for the land to be taken by the company, and for taking the same for such road, and also the amount that ought to be paid to him for the time spent, and ne- cessary expenses incurred by him in respect to the proceedings, to ascer- tain and determine such compensation and damages, of which time and expenses, a bill of items shall be presented to the jury, verified by the oath of the owner or his agent, and such compensation and damages shall be ascertained and determined without any deduction on account of any real or supposed benefit, which the owners of such lands may dejive from the construction of such road. 24. Such jury shall not proceed to a hearing in any case ontil the com- pany shall have produced to the said judge, satisfactory proof by affida- vit tL t the notice of the meeting of the jury has been given in such case, cording to the provisions of this act; and euch affidavit shall be 104 attached to and filed with the certificate of the verdict in the case. And on any such hearing, no evidence or information shall be given, nor any statement made lo the jury, of any proposition by, or negotiation be- tween the parties or their agents, in respect to any such lands, or such compensation or damages, nor shall any such petition contain any such statement or information. 25. Such jury, rinding any such verdict, shall, after agreeing upon the same, make a certificate thereof, and sign and deliver the same to the said judge; and shall embrace therein a particular description of the land, in respect to which it is found. Such certificate may include one or more verdicts, in the discretion of the jury. Every such certificate shall be certified by the judge to have been made by such jury ; and shall be recorded in the records of deeds, in the clerk's office of the county where the lands therein described shall lie, at the expense of the company. 26. Whenever it shall become necessary for any such company to use any part of a public highway for the construction of a plank or turn- pike road, the supervisor and commissioners of highways of the town in which such highways is situated, or a majority, if there be more than one such commissioner in such town, may agree with such company upon the compensation and damages to be paid by said company, for taking and using such highway for the purposes aforesaid. Such agree- ment shall be in writing, and shall be filed and recorded in the town clerk's office of such town. In case such an agreement cannot be made, the compensation and damages lor taking such highway lor such pur- pose, shall be ascertained in the same manner as the compensation and damages for taking the property of individuals. Such compensation and damages shall be paid to the said commissioners, to be expended by them in improving the highways of such town. 27. Any party interested in any such verdict, may, within twenty days after being notified of the rendition thereof, apply to the supreme court for a new trial, and it may be granted upon such terms as to the costs of the application and of the first trial, as that court shall deem reasonable. If a new trial shall be granted, a jury shall be drawn therefor, and the same proceedings shall be had as are hereinbefore provided. 28. Within forty days after the rendition of any such verdict, if a new trial shall not be applied for, the company shall pay to the person enti- tled to receive the same the amount thereol, or shall make a legal tender thereof to him, if he shall refuse to receive the same ; and the company may thereupon enter upon the lands in respect to which such verdict was rendered, and take and hold the same to it and its assigns, so long as it shall be used for the purposes of such a road as such company was form- or ACT to amend an act entitled " An act to provide for the incorpo- ration of companies to construct plank roads, and companies to con- struct turnpike roads," passed May 7th, 1847. Passed April 12th, 1848. The people of the State of New York represented in Senate and Afscm- 5,'y, do enact as follows : 1. The commissioners appointed by the board of supervisors, as pro- vided in the eighth section of the act to provide for the incorporation of companies to construct plank roads, and of companies to construct turn- pike roads, passed May 7th, 1847, are hereby authorised in laying out a plank road to determine the distance that the outer limits of the road shall be apart, as they may judge necessary, provided, in no case shall the company take morn than four rods in width, except by the voluntary sale of the same to the company. 2. Any company formed under this saii act, may take half the rates of tolls, and no more, provided for in said act, from persons living with- in one mile of the gate at which it is taken ; but no tolls shall be taken from fermers going to and from their work on their farms. 114 CHAPTER 250-LAW3 OF 1849. AN ACT in relation to plank roads and turnpike roads. Passed April 6, 1849. The People of Ilis State rf New York represented in Senate and Assem- bly do enact as follows : SECTION 1. The directors of any plank road company formed under the act passed May 7, 1849, entitled " an act to provide for the incorporation of companies to construct plank roads, and for companies to construct turnpike roads," may with the written consent of a majority of the in- spectors, whose appointment is provided for in the 23u* section of said act, construct branches to their main line of road, or extend their main line, or change the rout of their road, or any part thereof, which branches or extensions shall in all respects be governed by the same rules and affccted by the same laws as the main line of road, and the said direc- tors may increase the capital stcck of the company to an amount not exceeding two thousand dollars a mile of such branches or extensions for their construction, and distribute the certificates therefor among the stockholders of the company in proportion to the stock owned by them severally, if such stockholders shall demand and pay up the same ; and in case the new stock, after the directors have given public notice in some newspaper printed in every county in which their road is situated, for six successive weeks, is not demanded and paid by the stockholders, they may permit any person or persons to subscribe and pay on the new stock the same per centage that had been paid on the original stock of the company, and the same shall in all respects be held and considered as though it had formed a part of the original stock of tiie company. The right of way for any such branches or extensions shall be acquired by the company in the same manner as is now provided by law for plank road companies to acquire the right of way for their roads. 2. The following persons and no others, shall be exempt from the pay- ment of tolls at the gates of the several plank road companies, formed under the before mentioned act : NOTE. By chap. 230, laws of 1849, section 7, the inspectors of plank roads are authorized to determine the outer limits of plank roads, in the cases where the commissioners have not done so. In all ths cases of companies purchasing the right of way, either from individuals or from supervisors and commissioners of highways of towns, as provided for by chap. 398 laws of 1847 it is not necessary to have commissioners appointed by the board of supervisors to lay out the roads ; but inspectors must certify the road to be properly made, before tolls can be taken ; they cau determine the width ot that time or any time thereafter. * This reference to the 23d section should be the 33d section. The error was probably made in writing out the bill by the clerk. The seventh sec- tion of tiiis act makes the reference to the 33d section, as it should be. 115 1. Persons going to or from any court to whi:h they have been sum- moned as jurors; or to which they have been subpoenaed as witnesses. 2. Persons going to or from any training at which they are by law re- quired to attend. 3. Persons going to or from religious meetings. 4. All persons going to or from any funeral, and all funeral proces- sions. 5. Persons living within one mile of any gate, shall be permitted to pass the same at one-half the usual rates of toll, excepting farmers go- ing to or returning from their work on their farms, who shall go free, when not employed in the transportation of persons or property of other parsons. 6. Troops in the actual service of this state or of the United States. 7. Persons going to any town meeting or election, at which they are entitled to vote, for the purpose of voting and returning therefrom. 3. Any person falsely representing him or herself to any toll gatherer, as baing entitled to any of tiie exemptions mentioned in the pre- ceding section of this act, shall forfeit to the company, to be recover- ed in the corporate name of the company, in any justice's court, the sum of ten dollars. 4. Whenever any plank road company formed under the before men- tioned act, shall have finished their road, or any three consecutive miles thereof, and had the same inspected as provided in the before mentioned act, it shall be lawful to erect a toll gate thereon, and exact tolls thereatj for a term not exceeding one year, unless such road, or five consecutive miles thereof, be completed within such year. 5. Sections fifty-four, fifty-five and fifty -six of part first, title first, chapter eighteen of the Revised Statutes shall apply to all companies formed under the before mentioned act, passed May 7, 1847, so far a die same can be applied, and are not inconsistent with this act. 6. So much of section thirty-five of the aforesaid act, passed May 7, 1847, as provides that " in no case shall any plank road company charga or receive rates of toll which will enable said company to divide moce, nor shall any company divide more than ten per cent, per annum on their capital stock actually paid in and invested in their road, after keep- ing the road in repair, and appropriating not exceeding ten per cent, per annum on their capital stock invested as aforesaid, as a fund for the re- construction of their road when necessary, is hereby repealed. 7. The inspectors, or a majority of them, whose appointment is pro- vided for by the thirty-third section of the said act, passed May 7, 1847, are hereby authorised to determine the distance that the outer limits shall be apart, of any plank road or any turnpike road, belonging to any company formed under said act, in case the same has not been deter- 116 mined by the commissioners appointed under the eighth section of said net: provided, that in no case shall the company take more than four rods in width, except by the voluntary sale of the same to the company. 8. It shall be lawful for any two or more companies, formed under the provisions of the aforesaid act of 1847, to consolidate the respective com- panies, on such terms as the persons owning two-thirds of the stock of each of said companiss may agree upon; and such company, consoli- dated as aforesaid, may change the name of their rpad, on filing in the office of the secretary of state, a certificate containing the names of the roads so consolidated and the name by which such road shall thereafter , be known. 9. Any person who shall pass any plank road gate, or turnpike gate, without paving the toll, and with the intent to avoid the payment of the same, by which a penalty accrues, or any person committing any depre- dation or trespass on any plank road or turnpike, may be sued for said penalty or trespass in the county where such offence or trespass was committed, or in the county where such person may reside. 10. Whenever a complaint shall be made to the inspector or inspectors of any plank road or turnpike in this state, before such inspector or in- spectors shall act upon such complaint, he or they shall receive from the complainant the fees provided by law ; and in case it shall appear, upon examination of the road, that the complaint was well founded, the amount of said fees shall bo paid to the complainant by the company. In case it is determined that the complaint was not well founded, the complainant shall not be entitled to receive back the fees so paid by him. 11. Whenever any plank road or turnpike road shall be built in pur- suance of the provisions of this act, or the act hereby amended, upon the site of an old highway, it shall be the duty of the commissioners of the highways of the town where such road shall be made, to designate some district or districts within their town, on which the highway labor of the inhabitants residing along the line of said plank or turnpike shall be performed. 13. It slnll bo lawful for the inhabitants residing in any road district in this state, to grade, gravel or plank the road or roads in such district, by anticipating the highway labor of such road district for one or more years and applying it to the immediate construction of such plank or gravel road, and after the completion of such plank or gravel road, the said inhabitants shall be exempted from the labor so anticipated and ap- plied, except so far as their labor may be necessary to keep their said road or roads in repair : such road to be in all cases a i'ree road. 13. Section first of chapter 201, of the laws of 1847, is amended by striking out in the tenth and eleventh lines, the words, " and five per cent, paid thereon as hereinafter required." INDIANA PLANK ROAD ACT. CHAPTER I. AN ACT authorising the construciion of Plank Roads. Passed January 15, 1S49. SECTION 1. Be it enacted by the General Assembly of llis Stale of In- diana, That any number of persons may form themselves into a corpo- ration for the purpose of constructing and owning a plank road by com- plying with the following requirements : They shall unite in articles of association setting forth the name which they assume the line of the route and the places to and from which it is proposed to construct the road the amount of capital stock and the number of shares into which it is to be divided. The names and places of residence of the subscri- bers and the amount of stock taken by each shall be subscribed to said articles of association. Whenever the stock subscribed amounts to fifteen him J red dollars per mile of the proposed road, copies of the arti- cles of association shall be filed in the ollice of the recorder of each county through which the road is to pass. SEC. 2. Not less than three nor more than seven directors shall be elected by the stockholders of eveiy such corporation, who shall hold their offices for one year and until their successors are in like manner elected. Notice of the first election for directors shall be given by two weekly publications in some newspaper printed on or near the route of the road. SEC. 3. The directors may determine the particular manner of con- struction so as to secure and maintain a smooth and permanent road, the track of which shall be made of plank, or timber or other hard ma- terial so that the same shall form a hard and even surface. SEC. 4. The directors of said company shall proceed to locate and lay out said road, and may, with the consent of the Board of County Commissioners of the county, locate the same over and upon any state or county road or other public highway, and thereupon such state or county road or other public highway, or such portion thereof as may be so occupied and appropriated by said company, shall be and become the 118 property of said company for the purpose of making and maintaining said road and the gates and toll houses therecn ; and the Boards of Coun- ty Commissioners of the several counties of this state are hereby author- ized to give their consent to the appropriation and occupation of any such state or county road or other public highway, over and upon which any such company may locate any such road. SEC. 5. Any such company may take releases and conveyances of the necessary lands of any and all persons over whose lands the road may be located, and any such releases Or conveyance may be made and executed by any infant, feme covert, guardian, executor or administra- tor, and shall be valid and effectual in law, by obtaining the consent of the proper probate court thereto. SEC. 6. For the purpose of locating and constructing said road, it shall be lawful for such company, by their agents or persons in their em- ploy, to enter upon any lands to make surveys and estimates, and to take from the land occupied by said road any stone, gravel, timber, or other materials necessary to construct said road and the bridges thereon. Src. 7. If any porson owning lands over and upon which such road shall be located shall refuse to relinquish the tame for the use ol" said road, and no satisfactory contract can be made by such company with such owner therefor, it shall be lawful tor such company to give notice to some justice of the peace of the proper county, and such justice shall thereupon summon the owner of such land, if a resident of the county, to appear before him on a day to be named therein, and within ten days thereafter, and if the parties cannot then agree, said justice shall issue a venire for summoning before him a jury of three disinterested men of the county, to be selected by said justice, and such jury, after having' taken an oath or affirmation faithfully and impartially to assess the damages, if any, shall view the lands upon which such damages are claimed, and shall determine the same, duly considering the advantages of said road to said owner, and shall make report thereof to said justice, whereupon he shall enter judgment upon such report, from which judg- ment [either party] may appeal to the circuit court. SEC. 8. If the owner be a minor, insane person, or shall reside out oi the county where such land may be, such justice shall cause three no- tices to be put up within the township where such lands are situated, ol the time and place of summoning such jury to make such appraisements, and if no person appears for such minor, insane person, or non-residen of the county, such justice shall appoint some disinterested person to aci on behalf of such absentee, and shall then proceed as in other cases, am in all cases costs shall be awarded in the discretion of the jury. SEC. 9. In case such company shall require for the use of said roae any stone, gravel, or other material, from the land of any person adjoin 119 ing on or near said road, and such company cannot contract for the same with the owner thereof, such company may proceed in like manner to have die value of such materials assessed, as is above provided for as- sessing the value of lands ; and in every such case of lands and mate- rials such company may take possession of and use the same, immediate- ly after having paid such justice, for the use of the owner of such land or materials, the sum, if any, which may have been assessed therefor ; Provided, that such jury, in assessing such damages, shall not take into consideration the advantages of the road to the owners of such ma- terials. SEC. 10. If any such road, after its completion, or any part thereof, shall be suffered to be out of repair so as to be impassable for the space of one year, unless when the same ia repairing, said company shall be liable to be proceeded against by quo warranto ; and if such company shall suffer the road to be out of repair to the hindrance or delay of trav- ellers for an unreasonable length of time, they shall have no right to collect tolls thereon until the same is repaired. SEC. 11. It shall be lawful for the directors to require payment from subscribers to the capital stock of the sums subscribed by them, at such times and in such proportions, and on such conditions as they shall see fit, under the penalty of the forfeiture of their stock, and of all previous payments thereon, or under such other penalty or forfeiture as such com- pany may by by-law prescribe; and they shall give notice of the pay- ments thus required, and of the time ami place when and where, at least thirty days previous to the time when such payment is required to be made, in a newspaper printed in the county, or some one of the coun- ties in which such road may be located, or if no newspaper is printed in such county, then by posting up three written or printed notices at the most conspicuous places near where the road is proposed to be located, and at the court house of said county. SEC. 12. The shares of the corporation shall be deemed personal pro- perty, and shall be transferable in the manner prescribed by the by-laws ; and any person becoming a shareholder by assignment of stock shall succeed to all the rights and liabilities of his assignor, and the directors may provide for any increase of the .capital stock that they may deem advantageous to the corporation; Provided, the whole stock shall not exceed three thousand dollars per mile of the road. SEC. 13 . Whenever five consecutive miles of such road shall have been completed, or if the whole of such road shall be less than five miles in length, then, in such case, when the whole of such road shall be com- pleted, the directors of such company may erect toll gates at such points and at such distances from each other as they may deem proper, and exact toll from persona traveling on the road, not exceeding the follow- 9 120 ing rates : for every sled, sleigh, carriage, or vehicle drawn by one ani- mal, one and one half cent per mile, and for every animal in addition thereto one half cent per mile ; for every horse and rider or led horse one cent per mile; for every score of sheep or swine two cents per mile; and for every score of neat cattle, mules or asses five cents per mile. Persons going to and from funerals, and soldiers of the United States or of this State, while in actual service, shall be exempt from toll. SEC. 14. Every such company or association shall cease to be a body- corporate, if within two years from the time of filing a copy of Jieir articles of association with the county recorder they shall not have com- menced the construction of their road, and expended at least ten per cent, of their capital stock, and if within four years from such time such road shall not be completed ; and within six months after such load shall have been completed, the directors shall report such i'act, together with the cost of its construction, to the secretary of state. SEC. 15. Such company may make, enact, and publish any and all ordinances and by-laws which they may deem proper, not inconsistent with the laws of this state, in order to regulate the travel upon such road, and the rules to be observed by persons in meeting or passing with teams and vehicles, and all other matters which may be deemed for the welfare of such company. Any person violating any ordinance or by- law made by such company shall forfeit and pay to such company the sum of live dollars, to be sued for and collected by such company, in an action of debt before any justice of the peace of the county where the offender may be found. SEC. 16. If any toll gatherer or gate keeper on said road shall unreas- onably detain any person or passenger, after the toll has been paid or tendered, or shall demand or receive any greater toll than is by this act allowed, he shall, for every such offence, forfeit and pay a sum not ex- ceeding ten dollars, to be recovered before any justice of the peace hav- ing jurisdiction, by the party aggrieved, within twenty days after the occurrence. SEC. 17. If any person or persons using any part of such road shall, with intent to defraud such company, pass through any private gate or bars, or along any other ground near said road, to avoid any toll gate, or shall make any untrue statement as to the distance he or they may have traveled or intend to travel on the road, or shall practice any fraudulent means, and thereby lessen or avoid the payment of tolls, each and every person concerned in such fraudulent practice shall, for every such of- fence, forfeit and pay to such company the sum of three dollars, which shall be recovered in the name of such company in an action of debt before any justice of the peace of the county where the offender may be found ; Provided, nothing herein contained shall prevent persons resid- 121 ing on or near the line of said road from passing thereon between the gates, about their premises, for common and ordinary business. SEC. 18. If any agent, treasurer, toll gatherer, or other person to whose possession or custody any of the moneys of such company may come or be, shall convert any of said moneys to his own use, or make way with the same in any way, he shall be deemed guilty of embezzle- ment, and shall be punished upon indictment found, in the same manner and to the same extent as if he had stolen the amount so embezzled. The neglect or refusal of any such person to pay over on demand to such company or their agent any moneys in his custody or possession belong- ing to such company shall be deemed prima facia evidence that he has embezzled the same. SEC. 19. Upon execution issued upon any judgment or decree, ren- dered either in favor of such company against any person or persons, or in favor of any person or persons against such company, property shall be taken and sold for the highest and best price it may bring, and with- out any valuation or appraisement. SEC. 20. Such company may purchase and hold lands to the value of not exceeding one-fifth of their capital stock, over and above such lands as may be necessary in the location and construction of such road. SEC. 21. Associations formed under the provisions of this act shall, from the time their articles are filed with the auditor aforesaid, be corpo- rations known by the name they may assume in their articles of associa- tion, and except as in this act is otherwise provided, shall possess the general powers and be subject to the general restrictions and liabilities contained in the second article of chapter thirty-two of the Revised Sta- tutes of 1843. SEC. 22. The Legislature reserves the right to alter, amend, or repeal this act when it shall be deemed conducive to the public good. SEC. 23. The directors of any company that may be formed under the provisions of this act shall be liable in their individual property for any debt that they may contract in the name of any company as afore- said, over and above the solvent stock of any company formed as aforesaid. SEC. 24. This act shall be deemed and taken to be a public act, and shall be liberally construed, and shall take effect and be in force from and after its passage. CHAPTER H. AN ACT to amend an act entitled " an act to authorize the construc- tion of plank or coal roads," approved 16th February, 1848. Approved, January 10, 1849. SECTION 1. Be it enacted by the General Astembly of the State of In- 122 diana, That the act entitled " an act to authorize the construction of plank or coal roads," approved 16th February, 1848, be and the same i hereby amended as follows : First. Any five or more persons may vol- untarily associate themselves together for the purpose of constructing a turnpike road ; such association shall have power to construct a turn- pike, or turnpike and plank road, as they may at that time deem best, and shall possess all the powers and capacities, and be entitled to all the privileges and immunities specified in said act, and shall in all things be governed thereby, except as may be otherwise herein provided. Second. The board doing county business in any county where it may be desired to construct any road contemplated in this act, or the act to which it is amendatory, is hereby authorized to permit any such association or road company to construct their road over, upon and along any state or coun- ty road in said county, and such association or road company may erect and keep up toll gates thereon, and collect tolls in the manner and to the extent provided in the act aforesaid. Third. It shall not be lawful for any such association to charge or receive any toll unless their road shall be at the time in good repair. Fourth. So much of said act as allows the board doing county business to fix the tolls of any road company, and section nine (9) of the act entitled " an act to authorize the forma- tion of voluntary associations," approved 27th January, 1847, BO far ae this act, or the act to which it is amendatory is concerned, or any asso- ciation formed thereunder, are hereby repealed. Fifth. The books of said company shall be prima facia evidence of the truth of the state- ments therein, and any member thereof shall be a competent witness to identify their books. SEC. 2. This act, and the act to which it is amendatory, are hereby declared to br public acts, and shall be in force from and after its pas- sage. CHAPTER III. AN ACT to amend an act entitled " An act authorizing the construc- tion of plank roads." Approved, January 16, 1850. SECTION 1. Be it enacted by the General Assembly of the State of /- diana, That the first and fourteenth (1 and 14) sections of said act b* and the same are hereby amended, by striking out the word " Recorder^ where the same occurs in each section, and inserting in the place thereof the word "Auditor." SEC. 2. This act to be in force and take effect from and after its pas- sage. 123 CHAPTER IV. AN ACT to amend an act authorizing the construction of plank roads. Approved, January 19, 1850. SECTION 1. Be it enacted by the General Assembly of the State of In- diana, That when any company has been formed and organized in pur- suance of the aforesaid act, the said company is hereby authorized and empowered to make such additions to the road, or to extend the same Beyond the original limits contamplated by the company, as a majority of the stockholders shall determine. SEC. 2. That the seventh section of the above recited act is so amend- ed that in case the owner of any land over which such plank road be lo- cated should not be a resident of the county in which such land may be, the company may summon the agent or the owner thereof, and the same proceedings may be had against him as against the owner, and the same shall be equally binding upon the owner and upon the company. SEC. 3. This act shall be in force from and after its passage. CHAPTER V. AN ACT to correct a mistake in the act relative to plank roads. Approved, January 19, 1850. SECTION 1. Be it enacted by the General Assembly of the State of In- diana, That so much of an act entitled an act to amend an act entitled an act to authorize the construction of plank or coal roads, approved Feb. 16th, 1848; approved January 10th, 1849; as repeals or modifies section nine oi an act entitled an act to authorize the formation of vol- untary associations, approved 27th January, 1847, is hereby declared to be a mistake, and that the true intention and meaning thereof was, and is to repeal section eight, and not section nine, to the extent therein spe- cified, and said section eight of said last mentioned act is hereby de- clared to be repealed, and section nine of said act is hereby declared to be in full force, so i'ar as the same or either of them relate to plank or coal road companies. SEC. 2. This shall be a public act and shall be in force from and after its passage. CHAPTER VI. AN ACT to amend the General Plank Road law. Approved, January 21, 1850. SECTION 1. Be it enacted by the General Assembly of the State of In- tliana, That the first section of an act, entitled an act, authorizing the construction of plank roads, approved January 15, 1849, be so amended as to read as follows : That any number of persons may form them- 124 selves into a corporation for the purpose of constructing and owning a plank, McAdamized, or gravel road, by complying with the following requirements : They shall unite in articles of association setting forth the name which they assume, the line of the route and the places to and from which it is proposed to construct the road, the amount of capital stock, and the number of shares into which it is to be divided, the names and places of residence of the subscribers, and the amount of stock taken by each shall be contained in said articles of association. When- ever the stock subscribed amounts to one thousand dollars per mile of the proposed road, copies of the articles of association shall be filed in the office of the recorder of each county through which the road is to pass. SEC. 2. This act shall be in force from and after its passage. ILLINOIS PLANK ROAD ACT. AN ACT to provide for the construction of plank roads, by a general law. In force April 13, 1849. SECTION 1. Be it enacted by the people of the State of Illinois, repre- sented in the General Assembly, Any number of persons, not less than live, may be formed into a corporation for the construction of a plank road, by complying with the following requisitions, to-wit : Notice shall be given in each county through which any plank road is intended to be constructed, of the time and place or places where books for subscribing to the stock of such road will be opened, by publication three weeks consecutively in at least one newspaper [published] in said county or counties ; or if there be no newspaper published in said county, by post- ing up printed or written notices, for three weeks, on the door of the court-house, and on the door of the post-office nearest each terminus of the proposed road. When stock to the amount of five hundred dollars' for every mile of the road intended to be constructed shall be subscribed- and five per cent, paid thereon, the subscribers may, upon due and pro- per notice, elect directors for the said company, not less than three in number, who shall hold their offices until others are elected. The stock- holders shall severally subscribe articles of association, in which shall be set forth the name of the company, the number of years that it is to exLst, which shall not exceed thirty years from the date of said article; the number of shares of which the said stock shall consist ; the name? of the directors first elected ; the places from and to which the proposed road is to be constructed, and each township, town, or city, through which it is intended to pass, and its length, as near as it may be ; the name of each subscriber, and his place of residence, and the number of shares of stock subscribed by him. Upon the filing of said articles of association, with an affidavit of at least three directors affixed thereto, that the foregoing requisitions have in good faith been complied with, in the office of the secretary of state, the subscribers of stock as aforesaid, and all persons who shall from time to time become stockholders in said 126 association, shall be a body corporate, and shall possess and exercise all the powers and privileges of bodies corporate. 2. A copy of any articles of association filed in pursuance of this act, with a copy of the affidavit, certified by the secretary of state, shall in all courts and places be presumptive evidence of the incorporation of said company, and of the facts therein stated. 3. Within two weeks after the formation of any company by virtue of" this act, the directors thereof shaft designate some place within a coun- ty, in which, according to the articles of association of such company, its road, or some part thereof, is to be constructed, as the office of said company ; and shall give public notice thereof by publication in a pub- lic newspaper, published in such county, (if there be a newspaper so published,) for three successive weeks, and shall file a copy of such no- tice in the office of the clerk of the county court of every county in which any part of such road is to be constructed. And if the place of such office shall be changed, like notice of such change shall be publish- ed and filed as aforesaid, before it shall take place v in which notice the time of making the change shall be specified. Every notice, summons, or other paper, required by law to be served on such company, may be served by leaving the same at such office, with any person having charge thereof, at any time between nine o'clock, a. m., and noon, and between two and five o'clock, p. m., of any day, except Sundays and the fourth day of July. 4 It shall be the duty of the directors of said company to keep at their office, by the secretary, treasurer, or clerk, a book containing the names of all persons who are, or shall, within six years, have been stockhold- ers of such company,, a statement of their places of residence, the num- l>er of shares of stock held by them respectively, and the time when they respectively became the holders of stock ; which book shall, in office hours, as defined in section three of this act, be open for ihe in- spection of all persons who may desire to examine the same ; and every and any person shall have the right to make extracts from such book. Such book shall be presumptive evidence of the facts therein stated, in favor of the plaintiff, in any suit or proceeding against said company, or against one or more stockholders. Every officer or agent of any com- pany, who neglect to make any proper entry in such book, or shall neglect or refuse to exhibit the same, or allow the same to be in- spected and extracts to be taken therefrom, as provided by this section', shall be deemed guilty of a misdemeanor; and for every such refusal or neglect of such officer or agent, the company shall forfeit and pay to the party injured a penalty of fifty dollars, and all the damages resulting therefrom. Every company that shall neglect to keep such book open 127 for inspection as aforesaid, shall forfeit the sum of fifty dollars for every day it shall so neglect; which penalty, when recovered, shall be paid into the treasury of the county, or if there be more than one, into the treasuries of the counties, in equal proportions, in which the road is con- structed. 5. The shares of any company formed under this act shall be deemed personal property, and may be transferred as shall be prescribed by the by-laws of such company, but no transfer of stock shall be valid for any purpose whatever, except to render the person to whom it shall be trans- ferred liable for the debts of such company, according to the provisions of this act, unless such transfer shall be entered on the book required to be kept as aforesaid at the office of the company ; and such entry shall shew to and from whom transferred, and the date of transfer. 6. The directors of any company incorporated under this act, may re- quire payment of the sums subscribed to the capital stock, at such times, and in such proportions, and on such conditions, as they shall see fit, under ilia penalty of the forfeiture of their stock, and all previous pay- ments thereon ; and they shall give notice of the payments thus required' and of the place and time when and where the same are to be made, at least thirty days previous to the payment of the same, in one newspaper printed in each county in or through which the road is located, or by sending such notice to such stockholder by mail, directed to him at his usual place of residence. 7. The business and property of each company shall be managed and conducted by a board of directors, consisting of not less than three nor more than nine, who, after the first year, shall be elected at such time and place as shall be provided by the by-laws of such corporation, and public notice shall be given of the time and place of holding such elec- tion, not less than twenty days previous thereto, in a newspaper printed in each county in or through which the road of such company may be located ; or if no newspaper be published in such county, by posting up notices. The election shall be made by such of the stockholders as shall attend for that purpose, either in person or by proxy. All elections shall be by ballot, and each stockholder shall be entitled to as many votes as he shall own shares of stock, and the persons having the greatest num- ber of votes shall be directors, and shall hold their offices lor one year, and until others are elected. No person shall be a director unless he is a stockholder in the company, and no stockholder shall be permitted to vote at any election for directors, on any stock except such as he has owned for the thirty days next preceding the election. Whenever any vacancy shall happen in the board of directors, such vacancy shall be filled for the remainder of the year by the remaining directors. 8. Any company formed under the provisions of this act may procure, 128 by purchase or gift, from the owners thereof, any lands, or the right ot way over any lands, necessary for the construction of the proposed road; and may also agree to the use of any part of a public highway for the construction of a plank road, with the county court of the county in which such highway may be situated. Such agreement with said court shall be in writing, and shall be filed and recorded in the office of the clerk of the said court. Before constructing the road over such land as may be acquired by gift or purchase, or over any highway by agreement with the county court, such company shall cause an accurate survey of such road, or section of road, to be made by a practical surveyor, signed by two of the directors, acknowledged by them as conveyances of real estate are required to be acknowledged, and filed in the office of the clerk of the county court. 9. Whenever said company shall be desirous of constructing a plank road over any land not acquired by them by gift, purchase, or agree- ment, application shall be made to the county court of the county in which such land shall be, for authority to lay out and construct such road, and to take the land necessary for such purposes ; which applica- tion shall set forth the route of the proposed road as the same shall have been described in the articles of association. Public notice shall be given of such application, by publication for four successive weeks in a news- paper published in said county, if there be one published, and by post- ing up, for four successive weeks, a written or printed notice thereof, on the door of the court-house of said county. 10. Upon the hearing of the said application, all persons residing in said county, and all persons having any interest in any real estate through which said road is intended to be constructed, may appear and be heard. Such county court may take testimony in relation to such application, and may adjourn the hearing from time to time, in its dis- cretion. 11. The county court, if such an application be granted, shall appoint three persons, having no interest in the stock of the proposed road, nor in the lane over which said road is intended to be constructed, as com- missioners to lay out said road. If such company shall intend to con- struct its road continuously in or through more than one county, three commissioners shall be appointed by the county court of each county, and the joint commissioners so appointed shall lay out the whole route- The said commissioners, after taking an oath justly, and fairly, and im- partially to perform their duty, shall cause an accurate survey and de- scription to be made of such route, and of the land necessary to be taken for the construction of such road, and the necessary buildings and gates ; which survey shall be acknowledged as deeds are required to be ac- knowledged and filed in the office of the clerk of the county court. 129 Where joint commissioners act, appointed by different counties, they shall make a separate survey for each county, to be acknowledged, and filed as aforesaid. The commissioners appointed by each county court, shall at the same time assess the damages which each owner or owners of land in their respective counties will sustain, over and above the ad- ditional value which such lands will derive from the construction of the road, and make a report thereof in writing, signed by a majority of the commissioners, to the county court appointing them. The said com- missioners shall hear all persons interested, who shall apply to them to be heard. The company shall pay each of said commissioners two dol- lars for every day spent by him in the performance of his duties, and his necessary expenses. 12. No road shall be laid out through any orchard, to the injury or de- struction of fruit trees, or through any garden, nor through any dwelling house, or buildings connected therewith, or any yards or enclosures ne- cessary for the use and enjoyment of such dwelling, without the consent of the owner; nor shall any such company bridge any stream, where the same is navigable by steamboats, or in any manner that will prevent or endanger the passage of any flat-boat or raft of the width of twenty- five feet. 13. The route laid out and surveyed as aforesaid, shall be the route of said road ; and such company may enter upon, and take, and hold, sub- ject to the provisions of this act, all such lands as the said survey shall describe as necessary for the construction of such road, and the neces- sary buildings and gates. But before entering upon any such lands, the company shall purchase the same of the owners thereof, or pursuant to the provisions of this act, acquire the right to enter upon and hold the same. 14. If any owner of any such land shall, from any cause, be incapa- ble of selling the same ; or if such company cannot agree with such owner, for the purchase thereof; or if, after diligent inquiry, the name and residence of any such owner cannot be ascertained, the company may present to the county judge of the county in which the lands lie, a petition setting forth the grounds of the application, a description of the lands in question, and the name and residence of the owner, if known, and the means that have been taken to ascertain the name and residence of such owner, if unknown, and praying that the damages of the owner of the lands described in the petition may be ascertained. 15. Upon receiving such petition, the said judge shall appoint a time, at some regular or special term of the county court, for the hearing of the petition. At least ten days' notice of the time and hearing of the petition, shall be served personally upon each owner of the lands de- scribed in the petition, if he reside in the state of Illinois; and such 130 notice shall be served on all other owners in like manner, or by publica- tion thereof, for four successive weeks, in some newspaper published in the county in which the lands lie ; or if there are none published in such county, then in thg nearest newspaper ; the first of which publications bhall be sixty days before the hearing. 16. At the time appointed for the hearing, if the assessment of dam- ages reported by the commissioners be objected to by either party, by the consent of both parties, or those legally authorised to represent them, the county court shall assess and determine the damages which the owner of any lands will sustain, over and above the value the owner will derive from the building of the road. The court shall, in such as- sessment, hear any competent testimony cither party may present, and shall have power, upon cause shewn, to adjourn the hearing from time to time. The court shall, at the time of making the assessment of damages, also determine the amount that ought to be paid to the owner for the time spent and necessary expenses incurred by him in respect to the proceedings to determine the damages; which shall be paid by the company. The assessment of the court, which shall contain the name of the owner and an accurate description of the lands to be taken, shall be entered of record, and such assessment shall be final. 17. At the time appointed for [the] hearing before the county court, if the assessment of damages reported by the commissioners be objected to by either party, and a trial by jury demanded ; or if there be no per- eon legally authorised to act for the owner, it shall be GO entered of re- cord in the county court, and such entry, with a copy of the application, shall be certified by the clerk of the county court, and filed by him in tho office of the clerk of the circuit court, who shall docket the same. 18. Such case shall stand for trial in its order on the docket, at the term of the circuit court next after the filing of the papers by the county clerk as aforesaid; if the owner appears in person or by attorney, or if satisfactory evidence be furnished to the court by affidavit, or the return of a sworn officer, that notice of the time and place of the hearing of the petition before the county court had been served upon the owners per- sonally or by publication, as provided in section fifteen of this act. 19. In case any lands described in the petition shall be owned by any married woman, infant, idiot, or insane person, or by a non-resident of the state, and no person legally authorised to represent him, her, or them, shall appear, the circuit court shall appoint some competent and suitable person, having no interest adverse to the owner, to take care of the said owner's interest in the proceedings to assess damages to be paid to the owner. And all such notices as in the further progress of the case are required to be served on any owner, shall be served in like manner on 131 the person so appointed, but any person so appointed may at any time be superseded by the owner. 20. Cases of assessment of damages, except so far as is otherwise provided by this act, shall be conducted in the circuit court, according to the rules of practice of said court, so far as such rules are applicable. The jury, after hearing the evidence, and the parties, shall, by a verdict, ascertain and determine the damages which the owner of any lands will sustain over and above the value the owner will derive from the con- struction of the road, and also the amount that ought to be paid to him ' for the time spent and the necessary expenses incurred by him in the proceeding to assess damages, to be paid by the company. Such verdict shall be in writing, signed by the jury, and shall contain a particular de- scription of the land in respect to which it is found, and be entered of record. The court may, in its discretion, on the application of the com- pany, direct two or more similar cases standing for trial at the same term, to be submitted to the same jury. 21. Within thirty days after the rendition of any such verdict, or if a new trial be granted, or an appeal taken, within thirty days after the final trial, or decision in the appellate court, or within thirty days after the assessment of damages by the county court, if made by that court, the company shall pay to the person entitled to receive the same, the amount awarded by the county court, if tried by consent by that court, or awarded by the jury if tried in the circuit court, or shall make a legal tender thereof to him; and the company may thereupon enter upon the lands in respect to which an assessment of damages has been made, and take and hold the same so long as it shall be used for the purposes of such a roal as such company was formed to construct. 22. If any person be not a resident of this state, or cannot be found therein after diligent search, the company may furnish to the county judge satisfactory proof, by affidavit, of such fact, and he shall thereupon make an order, that the amount to be paid to the owner shall be depos- ited with the county treasurer of the county in which the lands lie, for the use of the owner, and notice of such payment to be given by publi- cation for four successive weeks in some newspaper published in said county, or if none be published in said county, in the nearest newspaper. Upon satisfactory proof being made to the judge, by affidavit, of such payment to the county treasurer, and publication, he shall make an or- der authorising the company to take possession of the land in respect to which the damages have been thus assessed and deposited, under which order the company may enter upon, take, and hold such land in the same manner, and with the same effect, as if payment had been made to the owner personally. 'The orders and affidavits made under thia section shall be filed in the office of the clerk of the county court. 132 23. Every plank road made by virtue of this act, shall be so construct- ed as to make a secure and permanent road, the track of which shall be made of plank, and in such manner as to permit wagons and other vehicles conveniently and easily to pass each other, and also so as to permit all vehicles to pass on and off where such road is inter- sected by other roads. 24. In each county of this state, in which there shall be any plank road constructed by virtue of this act, the county court shall appoint three inspectors of such roads, who shall not be interested in any plank road, and who shall hold their offices during the pleasure of the court. Before entering on their duties they shall take an oath faithfully to per- form the duties of their office, and file the same in the office of the clerk of the county court. 25. Whenever any such company shall have completed their road, or any two consecutive miles thereof, application may be made to any two of the inspectors, to be appointed as aforesaid by the court of the county in which the road, or the part thereof to be inspected, is constructed, to inspect the same ; which inspectors shall be allowed two dollars per day for the time necessarily employed, to be paid by the company whose road they inspect; and if they find that the road so inspected, or two or more miles thereof, is constructed according to the true intent and meaning of this act, and is fit for use, they shall sign a certificate to that effect. 26. Upon filing a certificate as aforesaid of the inspectors, or two of them, in the office of the clerk of the county court, the company may erect one or more toll-gates upon the road, and may demand and receive toll, not exceeding the following rates: For every vehicle drawn by one animal, two cents per mile ; for every vehicle drawn by two animals, three cents a mile ; lor every vehicle drawn by more than two animals, three cents a mile, and one half cent additional a mile for every animal more than two ; for every ten of neat cattle, one cent a mile ; for every ten of sheep or swine, one cent a mile ; and for every horse and rider, or led horse, one cent per mile. 27. The stockholders of every company incorporated under this act, shall be liable in their individual capacity for the payment of the debts of such company, for an amount equal to the amount of stock they severally have subscribed or hold in said company over and above such stock, to be recovered of the stockholder who is such when the debt is contracted, or of any subsequent stockholder ; and any stockholder who may have paid any demand against such company, either voluntarily, or by compulsion, shall have a right to resort to the rest of the stockholders liable, for contribution. The dissolution of any company shall not re- 133 lease or affect the liability of any stockholder, which may have been in- curred before such dissolution. 28. The debts and liabilities of any company formed under this act shall not exceed in amount, at any one time, fifty per cent, of the amount of its capital actually paid in ; and if such debts and liabilities shall at any time exceed such amount, the stockholders who were such at the time any excess of debts or liabilities shall be created or incurred, shall be jointly and severally individually liable for such excess, in ad- dition to their other individual liability as provided in this act. 29. In any action against any company iormed under the provisions of this act, the plaintiff may include as defendants any one or more of the stockholders of such company, who shall by virtue of the provisions of this act, be claimed to be liable to contribute to the payment of the plaintiff's claim ; and if judgment be given against such company, in favor of the plaintiff, for his claim, or any part thereof, and one or more stockholders so made defendants shall be found to be liable as aforesaid judgment shall be given against him or them, and shall shew the extent of his or their liabilities individually. The execution upon such judg- ment shall direct the collection of the sum for which it may be issued, of the property of such company liable to be levied upon by virtue there- of; and in case such property sufficient to satisfy the same cannot be found, that the deficiency, or so much thereof as the stockholders who shall be defendants in such judgment shall be liable to pay, shall be col- lected of the property of such stockholders respectively. And if in any such action any one or more of such stockholders shall be found not to be liable for the demand of the plaintiff, or any part thereof, judgment shall be given for the stockholders so found not to be liable, but no ver- dict or judgment in favor of any such stockholders shall prevent the plain- tiff in such action from proceeding therein against the company alone, or against the company and such defendants who are stockholders as shall be liable for such demand, or some portion thereof. Suits may be brought against one or more stockholders who are claimed to be liable for any debt owing by the company, or any part of such debt, without joining the company in such suit, but no such suit shall be so brought, until judgment on the demand shall have been obtained against the company, and execution thereon returned unsatisfied in whole or in part, or the company shall have been dissolved, and in such suit there may be a verdict and judgment in favor of any defendant not liable as aforesaid, but such verdict and judgment shall not prevent the plaintiff in such suit from proceeding therein against any defendant who shall be liable as aforesaid. 30. Where any services shall be rendered by any officer or person in the proceedings under this act, and no specific fees have been fixed by 134 law, the compensation to be paid by the company to any such officer or person, shall be taxed by the court under whose direction the services may have been rendered. 31. Any plank road, and its appurtenances, that may be constructed by virtue of this act, shall, for revenue purposes, be deemed real estate, and be liable as such to taxation. 32. All companies formed under this act, shall, for any violation of its 1/rovisions, to be determined by a judicial investigation, forfeit its corpo- rate privileges. Such companies shall at all times be subject to visita- tion and examination by the legislature, or a committee appointed by either house thereof, or by any officer or agent in pursuance of law. 33. Every company incorjwrated under this act shall cease to be a body corporate, if within two years from the ming of their articles of association they shall not have commenced the construction of their road, and actually expended thereon at least ten per cent, of the capital stock of such company ; or if within five years from such fjling of (he articles of association such road shall not be completed according to the provisions of this act. 34. The county court of any county is hereby authorised to subscribe to the stock of any plank road lying in said county, to an amount not exceeding one-third of said stock, and such county shall be subject to all the liabilitiss and hara all the rights of a stockholder, as provided by tfua act. JUDGE GRIDLEY'S OPINION. SUPREME COURT OF NEW YORK JEFFERSON GENERAL TERM. A PLANK ROAD REMAINS A PUBLIC HIGHWAY, IF LOCATED ON AN OLD KOAD- DAMAGES INCURRED BY GRADING CANNOT BE RECOVERED BY AN INDIVID- UAL. Benedict vs. Goit. Kirkland for the Plaintiff. Comstock for the De- fendant. Gridley, Justice. t The questions raised upon the demurrer in this cause involve the con- stitutionality. of one of the provisions of the act organizing the " Rome and Oswego Road Company," and authorizing the construction of the r<~ad known as the plank road, leading from Rome to Oswego. By the second section of the act (laws of 1844, p. 434) the provisions of the gen- eral statute concerning turnpike corporations, (1 R. S. 581) are adopted, and made applicable to the road in question. The 29th section of the general act confers the power of taking any public highway, by apprais- ing the value of the public interest in the road, and paying the same to the commissioners of highways, to be by them applied to the improve- ment of the roads in their respective towns. It is this particular provis- ion to which the plaintiff objects. He lives upon the line of the road which has been constructed upon the site of a public highway that has been appropriated under this section; and he complains that the defen- dant has committed an unwarrantable trespass upon his land by the act of building the road and also that in grading it an embankment has been raised in the front of his dwelling house, so that he has been com- pelled to incur considerable expense and inconvenience in raising his buildings to the level of the road. The defendant has in his plea justi- fied the alleged trespass, under the act, as a servant of the company, and to this plea the plaintiff has demurred. The ground assumed by the plaintiff is that the " locus in quo," since its appropriation by the company, has ceased to be a public highway and therefore that the entire interest in it has reverted to him as the original owner; and doubtless the conclusion follows as a legal conse- 10 136 quence if the premises are admitted lo be correct. Several cases have been decided in this state, holding that rail road companies, winch have occupied portions of the public highway, are liable to the owners of th* soil for an unlawful invasion of their rights. (3 Hill 567; 25 Wendell 462 ; 5 Hill 170.) But a rail road is in no sense a public highway. The nature of the road forbids its use by the public in common with the com- pany. But the position assumed by the defendant's counsel is that the road in question in this suit is a public highway still, open for the public use, precisely as is every public road in the state ; and that the corpora- tions organized by the act before cited has succeeded to all the rights and powers of the commissioners of highways, in the several towns through which the road passes. We are of this opinion. I. Thit the road is public in the sense that every citizen has the right to travel on it, either on foot, or horseback, in his carriage, or with hn team, subject to the payment of the legal tolls, is undeniable-. The ob- ject of the legislature in passing the act seems to have been two-fold : 1st. To provide for a better road than is ordinarily constructed under the supervision of the towji commissioners. In order to carry out this de- sign, the sixth section of the act declares that the "track of said road shall be constructed of timber, plank, gravel, or other hard material, so that the same shall form a hard, smooth and even surface." It cannot, be doubted that the legislature has the power to ordain by law that all the public highways in the state shall be graded, leveled, and construct- ed of some hard substance, under the direction of the town commission- ers, so as to form a hard, smooth and even surface. And it is equally clear that the commissioners in the respective towns, by virtue of the powers they now possess, may in their discretion improve the public highways in all these respects to the extent of the means under their control. No importance should be attached to the idea of a plank road ; for the intent of the act was simply to provide for a road constructed of some hard and durable material. A gravel road would equally have satisfied the requirements of the act. 2d. A further object of the legislature was to provide for a different mode of keeping the road in repair. It devolves the duty upon the cor- poration instead of the town commissioners, and provides for raising the necessary funds by levying tolls on those who travel on the road, instead of resorting to an assessment upon the inhabitants of the respective dis- tricts. We do not see why these provisions are not entirely within the power of the legislature. May they not vest the oversight of the public roads in any other agent than the commissioners ? And may they not provide any other mode which seems to them more equitable and expe- dient for keeping the roads in repair, than the ordinary highway assess- ment? And if these provisions should be extended to all the public highways in the state, would they cease to be public highways? And would the public interest in the roads become forfeited by such an act, anil the owners of the fee of the lands over which the roads are con- structed, succeed to their original estate in those lands, discharged of the right of the public to use them as public highways ? We think not- And if this consequence would not follow from a general exercise of this power by the legislature, we do not see why it should in the particular instances in question. To deny the power of the legislature to exercise this extensive control over the public highways in the state, would be to interpose an effectual barrier to any important improvement in our pub- lic roads and thoroughfares, and would operate most injuriously upon the jtdvancement and prosperity of the commercial, manufacturing, agricul- tural and social interests of the community. We are of opinion, there- lore, that, upon principle, the road which was taken by this company by virtue of the provisions of this act, did not cease to be a public highway ; and that when the corporation paid the commissioners of highways tor the public interest in the road, it succeeded to all the rights of the town commissioners to make such repairs in the road as the public interest re- quired, whether such repairs consisted in excavations or embankments, to bring the road to a proper grade, and thus to improve its condition aa a public thoroughfare. II. This question seems to have been settled, so far as such a question ran be settled by legislative authority. It is not pretended by the coun- sel for the plaintiff that any difference exists between the rights acquired by this corporation, and those to which a turnpike company would be entitled under the like circumstances. The provision in question has been incorporated in the acts relating to turnpike companies for more than forty years. The original turnpike act was passed in 1807, and was re-enacted in the revision of 1813, and again in 1830 ; and the prin- ciple was again distinctly asserted in the 26th section of the act concern- ing plank and turnpike roads, passed in 1847. (Laws of 1847, ch. 210, p. 216, sec. 26.) During all this period, within which the state has been traversed in every direction by turnpike roads, in the construction of which the right which is now drawn in question must have been most extensively exercised we have no knowledge that any individual hag complained of the exercise of this right, or controverted the constitution- ality of the act which conferred it. This long practice under the law, in addition to its repeated re-enactment, though not conclusive, never- theless is strong evidence in favor of the correctness of our viewa upon the question under consideration. This however is not all. The point has been directly adjudicated in the case of The Commonwealth vs. Wilkinson, (Pickering 175.) In this case a turnpike road wan adjudge^ to be a public highway. 138 It is not to be denied that the corporation have an interest, of a certain description, in the road. They may doubtless recover dam- ages against any person who shall commit nn injury upon it. This is, however, precisely the same interest which a public agent would possess in it, who should be employed under a legislative enact- ment to keep the road in repair, for a given compensation. Again, every citizen over whose lands a public road is laid out, retains an interest in the road. He still owns the fee of the land, and may maintain ejectment or trespass against third persons who take posses- sion of it. or use it for any other purpose than a public highway. The public interest in the road is merely that of a right of way ; and we can- not see how the interest which any individual or corporation may have in the road, that does not interfere with this right, can in any degree aflect its character as a public highway. The interest which this corpo- ration has in the road in question is entirely compatible with the use of it as a public highway, subject only to the single condition of paying tolls; and this, as we have already seen, is a burden imposed expressly for the keeping of the road in repair. And in many instances it is fai- more equitable than the common mode by assessment of a highway tax. By the latter mode, a citizen, whose employment consists in drawing heavy loads over a given tiact of highway, in no degree indemnities tha public for the repairs which he renders necessary by the insignificant as- sessment which he pays in his own district. In all such cases, the sys- tem of tolls is a far more equal and just one. t III. The claim made under the 4th count of the declaration must de- pend upon the decision of the question we have just considered. If the corporation has succeeded to the rights and powers of the commission- ers of highways, then any inconvenience or damage which the plaintiff has suffered by proper and reasonable repairs of the public highway is " damnum abstjue injuria." If the commissioners see fit, for the purpose of grading a highway, to cut down a hill, or to raise an embankment in the road adjacent to the premises and dwellings of citizens by which those citizens suffer expense and inconvenience, no action can be main- tained for the injury. This question was thus settled in the case of Graves vs. Otis, (2 Hill 466,) where the injury complained of consisted in cutting down an eminence in a public street and sidewalk in the vil- lage of Watertown, by which the plaintiff's store was left some six or eight feet above the level of the sidewalk adjacent to the premises. (Ses also to the same point, 1 Pickering 418 ; 4 Term Rep. 794 ; 8 Cowen 146; Sedgwick on damages 110.) We have not inquired whether it was necessary to allege in the plea that the value of the public interest in the road had been appraised and paid to the town commissioners, nor whether any other criticism may 139 be applied to the plea. But we have assumed that the acts for which tha action is brought were done in the legitimate exercise of the powers conferred by the statute, and were incident to the right of constructing a road of a proper grade, and so as to form a hard, smooth and even surface, as directed by the 6th section of the act. In doing this, we have complied with the request of the counsel of both parties, their object being to obtain a decision of the important constitutional question which we have discussed. But for any unreasonable exercise of the power con- fe.rred by the act, the agent is responsible ; and if such a case can be made out, the plaintiff should have the opportunity to amend lu's decla- ration. The demurrer is therefore overruled, with the right to amend on pay- ment of costs. University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. Ml L 006 481 847 9 UC SOUTHERN REGIONAL LIBRARY FACILITY 001 035517