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 - - <i>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 mU<is r to- the first
toll-gate, where nea*ly five 1 thousand dollars suyearars
taken i ; and. had some coaversaikm. with the gate-keep-
er, li found- a comavoB country road, comiag in, at right
angles to- the plank road, just at the gate house.. And
wagoners coming ia by this csoss-soad had the choice,,
either to pass through the gate, paying toll and taking tha
plank road, two miles, to Syracuse ? or. elseto take a com-'
mon earth road leading to the city, miming nearly paral-
lel to the plank road and nowhsse more than forty, or fifty
rods distant fr-em- it.- This earth road seemed i.n< fair order,
though, I- observ&d, semew-bat grown up with grass ; and
I asked the toll-gate keeper what portion of the wagons
coming along the cross-road pa4d toll aud took, the plank
road-, and' wtnu r>r.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
<ef business ;af?er a v/eek'^ wet v/eaiher Jess of temper
Ending <vont vn oaths end Wows -shivered on -exhausted
Battle, loss <3f ;CRsh fcy 'half and quarter ioads rail these
and fifty similar losses and expenses are not rhe'less sure-
ly toll -evaded .on ;the .road, .though no agent 'of a rroatf
ecompany collecis it, froixs .the .stej) -of ihis ^aie-th
24
No road system, based on day's labor, will ma-Re the
roads free; for, as a general ule, ao such system will
make them good r and bad roads never can/ be, in any
just sense of the teitm, free roads. They a-se 1 , >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<a aver-age cutting, of more-
ihan five feet for upwards of a q^uar.ter of a mile; and
then, through the summu, a cutting, of nearly ten. feet for
some twenty or thirty rods. To avoid such expense, vhe-
bridge, instead of being run on a level, as is usual, was
constructed with an ascending grada of one foot in fifty ;,
which can be done- without difficulty or injury to the sol-
idity of the structure : its northern, extremity was thus-
raised about five feet ; the cutting: for a quarter of a mile-
was almost ewure'.y sa.ved, and the cutting tbwough the
summit diminished to less tha-n five feet. The saving ef-
fected by this expedient amounted to. several hundred dol-
lars.
Again, in descending the principal hill on. this road, near
Harmony, to avoid a steep pitch, of about oae foot rise in
ten, and after surveying several different romes, one was
selected as the most favorable, upon which a gradual de-
35
scent of half a mile, averaging about one in thirty-seven,
was obtained. In locating this line, at the above grade,
the most expensive portion was found to be an excava-
tion, near the centre of the descent, averaging nearly six-
teen feet for upwards of one hundred yards and furnishing
considerably more earth than was required for the adjoin-
ing embankments. To avoid so deep a cut, instead of run-
ning the grade of 1 in 37 down the entire hill, the upper
portion was ruii with a grade averaging about 1 in 40, while
on the lower half the grade was increased to about 1 in 34.
In this way the deep cutting was reached at a point more
than six feet higher than before; the excavation conse-
quently decreased to an average of less than ten feet, and
the excavation and embankment balanced. This was ef-
fected without exceeding the maximum grade (1 in 30);
and it may be considered to have improved, rather than
injured, the location of the road. Gillespie, speaking of
what roads ought to be as to their slopes, says:
If the ascent be one of great length, it will be advan-
tageous to make steepest the lowest portion of it, upon
which the horses come with their full strength, and to
make the slopes greater towards the summit of the ascent,
to correspond to the continually decreasing strength of the
fatigued horses."*
1 select examples which to some may seem too simple
and self-suggesting to merit record, because this treatise is
strictly popular in its character, intended for those who
know nothing, professionally, of engineering, and who
may yet be called upon, unaided perhaps except by a
county surveyor, to lay off new and possibly difficult lines
of road.
*3.oads and Railroads, p. 42.
36
A plank road, or indeed any improved road, ought to
have no curves run with a radius oflessthan one hundred
feet; especially when constructed on a steep hill-side. A
carriage driven at speed around a more contracted curve
than this, especially during ice, runs some risk of upset-
ting ; and in case of horses running away, the danger be-
comes imminent.
To the unprofessional a few memoranda regarding the
mode of tracing curves may be serviceable. By a calcu-
lation unnecessary to detail here, it will be found, that if
we are running with stations of two rods, or 33 feet each,
and if we deflect one degree at the end of each station, so
as to make a curve, of which the chords are thus 33 feet
in length, that curve has a radius of 1890 feet. Now this
quantity, (of 1890) becomes a constant, by dividing which
by any given number uf degrees of curvation, the radius
corresponding to that number of degrees may be found.
Thus, (always supposing the stations to be 33 feet each)
if, at the end of each we deflect twenty degrees, the radius
of the curve we are thus describing is 1890 divided by
20; or ninety-four feet and a half. If the deflection is
about eighteen degrees and nine tenths, the curve will be
of 100 feet. If the deflection be double that amount, the
curve will have a radius of 50 feet only; and so on. It
is to be remarked, however, that, in passing from a straight
line to a curve (as that straight line is of the nature of a
tangent, not of a chord, to the curve in question) the first
deflection must be only half as great as at the end of each
succeeding station.
Thus, in practice, if with stations of 33 feet, we desire
to commence, from one end of a straight line of road, a
curve of 100 foot radius, the first deflection must be of
about nine degrees and forty-five hundredth^; the next, at
37
the end of 33 feet further, of eighteen degrees and nine-
tenths ; and we must continue this same deflection of
eighteen and nine-tenth degrees at the end of each suc-
ceeding 33 feet, so long as we desire to continue the curve.
I refrain from further enlarging on this and kindred
branches of the subject, as they exceed the limit and scope
of this brief treatise; and as no important plank road
ought to be undertaken, without consulting good works on
road-making, whcyre the above and all oiher branches are
treated at large. Gillespie's " Roads and Rail Roads" is
one of the best.
Little engineering is commonly required in laying out
plank roads. In New York they are usually laid down on
the lines of old State roads, deviating from these only
when the limit of grade fixed upon is exceeded. Where
much of the line is new, however, and there is considera-
ble embankment and excavation, an engineer's spirit-level,
in the hands of some one who understands its use, is in-
dispensable. It is ;:lso requisite, that whoever locates the
road and sets the stakes for the contractor, preparatory to
grading, should be able accurately to calculate quantities
of excavation and embankment, in thf> 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 $. railroad l ifhe traction Corresponds to tfe power
ewerted by the locomotive i dragging -ohe trai-n bebrnd it.
On & plank or >macadnHEed road it is tfte force -eweried by
a horse against nis -collar in drawsngtmy load. When we
speak of a traction -f fifty pounds, we mean a horizontal
draught that \voald suffice t raise a weight ef fifty pounds
perpendicularly; for example, by passing a rope uached
no the wight ovr t pully-, mukmg it fast to dae sw>ingle-
uree, and^causing the horse to .-advance,
The Inaction <*n a perfectly level and -well *nade rail-
road, with tar wheels of th proper construction and m the
^best order, is usually set down at <eight .pounds to the ton
(neu, of 2,000 Ibs.) In practice, howe^^erTiit may be -con-
sidered v be te$ petmds. That is to say, -on soh a rail-
iroad it is usually found, that the ame -horizontal draught
which weuld raise R weight often pounds per[>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<r the line of any pro-
jected road becomes steeper than the limit of the maximum
grade that may have been adopted by the road Company,
the grading ought to be let out by contract to the lowest
-responsible bidder.
Previously to letting out any contracts, general specifi-
cations ought to be adopted ; and these should be append-
114
49
ed to every separate contract and made a part of the same.
These general specifications ought to provide:
1. That contractors shall not, during the progress of the
work, obstruct any road over which the right of way may
have been granted, nor any road crossing the same.
2. That the work shall be commenced at any point de-
signated by the Acting Commissioner; and shall be execut-
ed in accordance with stakes which he will cause to be set
to mark the location of the road, its slopes, &c. And
reasonable care should be required of the contractor to pre-
serve these, while the work is in progress.
3. That any increase or diminution of the amount of
work of the same description as named in the contract,
shall be paid for, or deluded, at contract prices.
4. That whenever materials delivered for the use of the
road are rejected by the Acting Commissioner or his agent,
they must be removed at the expense of the contractor.
5. That all contracts shall be fulfilled under the personal
superintendance of the contractor; and not sub-let.
6. That all work remains at the risk of the contractor
until fully completed and received by the Acting Commis-
sioner.
7. That estimates of the work done shall be made
monthly, if required ; that 85 per cent, of the estimate
shall be paid, and 15 per cent, retained till completion of
the work, as security for its faithful performance.
8. That the embankments be formed of pure earth, sand,
clay, gravel or rock, and that no perishable or vegetable
matter be admitted into them, except stumps, which may
remain, provided they do not reach within one foot of the
surface of the embankment.
9. That the embankment be twenty feet wide at top,
unless otherwise specially directed; that excavations be
a r
\
twenty-five feet wide at bottom, with side ditches, each
xwo and a half feet wide.
10. Tba^the side slopes of embankments have a slope
of one and a half foot horizontal to one foot vertical ; and
that excavations have a slope of one foot vertical to one
foot horizontal.
11. That the side-slopes of excavations be neatly and
evenly dressed, and that all siumps be removed therefrom.
or burnt.
12. That all stumps on the line of the road be burnt or
otherwise disposed of, as the Acting Commissioner shall
direct: the grubbing or burning of all stumps in excava-
tions exceeding one foot in depth to be considered as ia-
cluded in the price of excavation,
13. That where adjacent to excavations, embankments
shall, in all cases, be formed of materials taken from the
former ; and that the whole will be reckoned as excava-
tion only, no matter what the distance, unless there be an
excess of embankment; in which case that excess will be
reckoned at the same price as the bid for excavation.
1.4. That all materials for embankment taken from adja-
cent side ditches will be considered as excavation only.
15. Thai contractors must make the necessary allow-
ance for shrinkage and settlement in the embankments; as
they will, in no case, be considered complete, until at the
proper height after consolidation.
In addition to the above specifications, if any wooden
bridges occur on the line, it should be specified, that the
contractor shall provide a competent and experienced
mechanic to direct their framing and building, in confor-
mity with drawings or directions, to be famished by the
Acting Commissioner; that the limber whether hewed or
sawed, should be of full size, and entirely free from sap,
51
bad knots, shakes, wanes or other imperfections impairing
its strength and durability ; and, finally, that, in all cases
where the timber is delivered before the contractor is pre-
pared to proceed with the framing, it must be raised from
the ground and piled in a manner most likely to prevent
springing, warping or other bad effects irom the weather.
In case of erections of stone, the best works on stone-
masonry should be consulted, to obtain general specifica-
tions.
Where there is any considerable excavation and em-
bankment, these should be made, if possible, to balance
each other. This is easily effected on a smooth hill-side,
or in cutting across the spurs of a ridge, with small valleys
between, or in a road where alternate hills and hollows
occur. It is to be remarked, however, that any given
amount of yards excavated will make, when laid up in
embankment, from one fifth to one tenth less; the percen-
tage varying according to the nature of the soil. Thus an
excavation of a thousand cubic yards will supply from
eight hundred to nine hundred yards only, in embankment.
An embankment left to settle, should not be rounded at
top, but rather hollow, so as to suffer the rain to sink into
it. In raising a heavy embankment, it is better that the
earth should be carted in layers of about two feet thick-
ness; but if it cross a deep and narrow ravine, onq can-
not reasonally expect a contractor to bind himself to this
rule. An embankment of any considerable height becomes
more solid if carts are used, than if the earth is moved in
wheelbarrows.
When a culvert becomes necessary under an embank-
ment, at a depth of. more than six or eight feet and there
is not a sufficient supply of running water to keep the
same constantly submerged, I recommend that stone be
52
adopted as a material, if it can be obtained at any reason-
able cost. It is difficult and expensive so to construct a
wooden culvert, that, when it decays, it can be removed
and renewed without digging down to it: and this last ex-
pedient, if the embankment be deep, is costly and trouble-
some.
The form of stone culvert adopted on the Mount Vernon
road will be understood from the following figure and spe-
cification :
1
1
1
v
y
V
"Yr-r ^f*
7 1
/ V
J
I
1
I
TyrrTf
f 1
1
SPECIFICATION.
" To be of good sound rubble work, set in good lime
and sand mortar. The covering slabs to be neatly jointed
and closely set together. The floor of the drain to be
concave and its center two inches below the bottom line of
the side walls; to be paved with stones set on edge length-
wise of the drain, and to be not less than five inches deep;
set firmly side by side and the interstices filled up with
stone chips, packed in with a small hammer; and then
finished with a light coat of hydraulic lime.
53 , v
"The opening of the drain to be 18 inches by 20, in
its greatest depth. The side walls to be not less than 12
inches thick and eighteen inches high. The covering
stone to be not less than 4 inches thick and 28 inches
long. The upper course of the side walls to project 2
inches into the opening.
" As the upper end of each culvert a flat slab to be sunk,
after the manner of sheet-piling, three and a half feet
square. The discharging end to be paved beyond the
drain with a concave pavement similar to the bottom of ihe
drain, but two feet and a half wide and three feet long.
" The culvert to be continued to the extreme tow of the
embankment and the face, at each end, to be neatly ham-
mer-dressed."
The essential matter, in the construction of such a cul-
vert, is to prevent the undermining, by the water, of the
drain-floor and the side walls. The precautions, there-
fore, of sinking a protecting slab at the upper end, and
continuing a pavement at the discharging end, are impor-
tant. I am not sure, that, under ordinary circumstances,
54
ihe coating of hydraulic lime is necessary. An inch or
an inch and a half of fine gravel, hard rammed with a
pavior's betel, would probably serve as good a purpose.
A cheap and simple wooden culvert maybe constructed
by laying down plank two and a half or three inches thick
and four feet long, as a floor; then let each side wall be
composed of two logs, each squared on two sides, not less
than 9 inches high and 13 inches wide. Cover with the
same plank as that used for the flooring. The plank had
better be of the same thickness as that used for the road ;
so that refuse plank, of which a half length is sound, can
be employed. (See figure on page 53.)
A stone culvert ought never to have an opening of less
than 18 inches square, no matter how small the amount of
drainage it is intended to effect; since it may become ne-
cessary, in case of its becoming choked up, to send in
some one, to clear it out.
The stone culverts on the Harmony hill cost, by con-
tract, a dollar and a quarter a running foot. The stone (a
sandstone) was furnished in the quarry, without charge to
the contractors, and had to be hauled about two miles, over
bad roads and during inclement weather. All other ma-
terials, except the hydraulic lime, were furnished by the
contractors. The price was a moderate one.
Heavy embankments ought to be allowed to settle, sev-
eral months if possible, before the superstructure is laid
upon them. Light embankments, say of 2 or 3 feet only,
especially if they are on the line of an old road, had better
be thrown up just before the plank is ready; as any travel
passing over them tends to injure and displace them.
The road-bed on an embankment of considerable height
had better be 22 feet wide instead of 20 ; as the edges will
wash, more or less. If the funds of the road, however,
55
run short, a hi^h and short embankment may be made
half width only, say 12 feet, with the plank road in the
center-; in which case, of course, wagons cannot pass each
other upon it, but must wait, as at the end of a narrow
bridge, till the passage is clear. But this expedient ought
not to be resorted to, where eke amount of travel is con-
siderable, if it be adopted on a country road, and the
travel increases, it is an ea?y matter, at any lime, to add
TO the width of the enakaakmem, and move the | lank to
oae side.
CHAPTER VII,
CONSTRUCTION. SUPERSTRUCTURE.
The execution of the superstructure (that is to say, the
ditching and light grading, and shaping of the road on such
portions of the line as do not exceed in steepness the limit
of maximum grade, and a^so the laying down of the plank)
should not be let out toy contract, but ought to be executed,
under the personal supervision of the Acting Commission-
er, by companies of from 10 to 15 hands, each company
under the charge of a foreman. If let out by contract,
the work may be slighted so as greatly to impair the dura-
bility of the road, without the possibility of detecting the
deficiency when the whole is completed and ready to be
received.
The essential, in laying down a plank road, is. that as
well when first made as after it setttes, the plank should
rest solidly and immoveably on the ground. Any mode
50
by which this can be thoroughly effected will make a good
and durable road. One of the chief conditions upon
which this permanent solidity depends is, that the road-
bed be completely drained. There is, therefore, no one
point, in the construction of a plank road, more important,
than effectual drainage. To attain this essential object
ditches of sufficient size should be opened, and at all times
kept open, throughout its entire length ; and the side levels,
in the construction of the road, must be carefully pre-
served.
It is a common thing, especially on high rolling land, to
omit ditches, along plank roads ; but such carelessness is
any thing but true economy. In such situations, the side
ditches of the road need not be so deep or wide as on low,
flat land ; but they can no where be safely dispensed with.
The average width of side ditches should not, at top, be
less than four feet, nor their average depth less than 16
inches. A ditch six or seven feet wide, however, may
often be necessary Jo drain fiat, marshy land; while, in a
considerable excavation, a ditch on each side two and a
half feet across, may, for the sake of economy, be made
to suffice. Where the road cuts into a long hillside and a
single ditch on the upper side only is necessary, there
should be frequent small culverts under the road, to pre-
vent the accumulation of water in the ditch; and a guard-
ditch along the upper edge of the side slope, if the hill
above be of any considerable height, is a necessary pre-
caution.
Care must always be taken, when the road passes over
a level, that the bottom of the side ditches shall have a
slope, lengthwise, sufficient to carry off the water that
flows into them. This slope should never be less than 1
foot fall in 120. The same is true of the road-bed itself;
57
which, in its longitudinal grade, should never approach
nearer to a level than 1 foot rise or fall in going 120.
Where the ground for a great distance is perfectly level,
the road should be artificially formed into gentle undula-
tions, its slopes alternately rising and falling at the above
rate.
The road-bed, between the ditches, is usually twenty
feet wide. One side of the road is occupied by the plank,
the other is graded into an ordinary earthroad upon which
to turn out. Sometimes the plank are laid close up to the
ditch, but this is a faulty construction; the side of the
ditch is apt to crumble down, so as to expose the lower
surface of the plank. There should be a width of eigh-
teen inches intervening between the outer end of the plank
and the edge of the ditch; and, to facilitate drainage, this
intervening space should have a slant of an inch to a foot.
The width of that portion of the road which is laid with
plank is usually eight feet; and this is found sufficient for
all practical purposes, even on roads much travelled.
Over a single track, in the vicinity of Syracuse, upwards
of 160,000 teams passed in two years; making an average
of about 220 teams per day. In the immediate vicinity of
a populous town, however, a double track (that is, two sep-
arate tracks running side by side and each eight feet wide)
is desirable.
On wet, yielding soil, where a wagon turning out with
two or thiee tons load would be likely to mire down, por-
tions of a second track, in the form of turn-outs, (say
forty feet long and occurring at intervals of 150 or 200
yards apart) will be found necessary. On the New York
roads this expedient is seldom resorted to; but their soil is
usually much firmer and more gravelly than that of our
Western States. To what extent wooden turn-outs will be
68
required in the latter, time alone can determine. It is to
be remarked, however, that if, for lack of such a provis-
ion, it should become customary, in wet weather, to load
teams one-third or one-half less than would otherwise be
usual, the loss, by dispensing with them, would be very
great.
On the other hand it should be remembered, that the
earth-road used to turn out on, commonly remains in much
better order than an ordinary road. By the rule of plank
roads, light teams always give way to heavy ones, and
this saves it considerably. Again, as a team merely turns
out upon it to return again immediately to the plank, there
are no continuous wheel-ruts, to receive, and become a
channel for the rain; and, besides, it is unlikely that any
two wagons, in turning out, will strike precisely the same
track.
But, to ensure its continuance in good order, it must
have a side slant sufficient for effectual drainage. Some
have recommended eight or nine inches, but I think about
half an inch to a foot say 5 or 6 inches in its entire
width of ten feet and a half is sufficient.
The plank should have a side slant, in their entire
width, of not less than an inch and a half, on hard, dry
ground, and not more than two inches on wet, flat ground.
On some roads a slant of three inches has been adopted ;
but T have been told, that in slippery weather, on
that slant, the wheels are apt to slide : and, in addition, a
slant as great as that, amounting to nearly two inches in
the width of a wagon-track, continually kept up. by throw-
ing the load unequally on the wheels, is said to produce a
sensible injury to the axletrees.
On a rapid turn the road-bed should be twenty-two feet
wide; and if the plank are on the outside of the turn, the
59
minimum slant of an inch and a half should always be
adopted : while, if they are on the inside, the full slant of
two inches should be given. For such a turn the plank
have to be sawed narrower at one end than at the other;
and are better, if 12 feet long.
On any level portion of a road, where the soil inclines
to be wet, the general level of the road-bed should be not
less than two feet above the surrounding countrv.
Two stringers, sleepers or mud sills are usually laid
down, parallel to each oiher, along the line of the road,
upon which to rest the plank. Sometimes three or four
stringers have been employed; and on a road very much
travelled this may be a wise precaution; also wherever
any road passes over wet, yielding soil. If four stringers
are used, they should be laid two and two together, and so
to break joint. When two only are employed ihey should
be laid so that the end of a stringer on one side is o.po-
site to the centre of a stringer on the other; and, in that
case, at each point where two stringers abut against each
other, there should be underlaid a piece of inch plank,
two feet long, and us wide or a little wider ih;tn the string-
er. Upon the centre of this plank the joint should be
broken. Other plans are sometimes adopted to prevent
the sinking of the stringers at their points of junction ; as
lapping them a foot or more past each other, bevilling their
ends, &c.; but I think the plan I have recommended and
which is now adopted on the best roads, the cheapest by
which the object desired can be effectually secured.
The distance of the stringers apart should be thi same
as the usual wagon track of the country. Ours is five
feet from centre to centre of the wagon-tire; and the
stringers on our roads should therefore be laid five feet
apart, from centre to centre.
The stringers are sunk in the road-bed and ihe earth
filled up between them and outside of them, so that the
plank, when the road settles, shall rest equally upon the
earth and upon the stringers.
To effect this thoroughly, so that, after the road has
been made say six months, it shall still remain solid; or,
in other words, that the earth, between and without the
stringers, shall not have settled away Irom them and left
the plank resting on tha stringers alone, is, in practice, not
very easily done: and yet upon this, as much as upon any
other one circumstance, depend the excellence and dura-
bility of a plank road. If the earth sink away, leaving a
hollow on either side of the stringers, the rain will pene-
trate, making a substratum of mud; the plank, yielding
under heavy loads, will churn, as the phrase is, forcing the
mud up between the joints; the road becomes unstable and
permanently hollow, and the plank wears out very rapidly.
I learned from Mr Alvord, of Salina, that, on a flat and
somewhat wet portion of the Syracuse road, where the
drainage hau been insufficient and the road imperfectly
constructed, the plank, resting for several rods on the
stringers alone, had worn three times as much as on the
adjacent, higher, and better drained and more solid sec-
tions. It should be remembered, then, that errors of con-
struction, which cannot even be detected by an inspection
of the finished road, may be of so fatal a character as
wholly to cut ofF all dividends, and destroy the value of
the stock in a road, which, under more prudent manage-
ment, would have proved a profitable investment.
61
To avoid this defect and ensure solidity of substructure,
we have adopted, on the Mount Vernon road, an expedient
which I do not know to have been elsewhere considered ne-
cessary on plank roads. It is to employ a wooden roller,
composed of the butt of a large burr oak; its dimensions up-
wards of three feet and a half in diameter and eight feet long;
weighing about two tons and a half; with iron gudgeons
and having a frame on either side to hitch to ; so arranged
that when it is desired to reverse the direction in which it
is drawn, this can be done, without turning the roller, in a
few seconds, by merely unhitching the oxen or horses and
attaching them to the other side ; somewhat after the man-
ner of hitching and unhitching teams to railroad cars.
After the earth is levelled off to the proper grade, pre-
paratory to laying the stringers, this roller is passed over
it once, back and forth. The stringers are then laid, in
properly prepared furrows, so that their upper surface is
somewhat below the level of the earth on either side, and
the roller is passed over them, back and forth, a second
time; so as to settle every thing down, in a permanently
solid mass, ready to receive the plank.
The other tools required in laying down the superstruc-
ture, are, besides shovels, a stout road-plough of large size ;
a strong iron rake, an iron crow-bar weighing 15 or 16
Ibs., 5 feet long, sharpened, in wedge form, at one end, so
t hat it can be sunk in the ground and used as a lever to
bring each plank, as it is laid down, close up to the pre-
ceding one, and with a broad, flat head at the other, so that
it can be reversed and employed, as a pavior's betel, to
ram the plank down home. For this purpose, however,
some recommend, in preference, a maul of the hardest and
heaviest wood that can be got, 2 feet 8 inches high; 6
inches diameter at bottom, where it should be a little
62 ,
rounding, and four inches and a half at top, with one up-
right, and 2 cross, handles. The upright handle is used
when the maul is employed to drive the plank close up to
the last laid, and the horizontal handles in pounding the
plank down. On old, hard roads I have seen a heavy iron
hammer employed, in preference to either of the above;
but upon the whole, the crow-bar seems to me the most
convenient, and has been adopted on our road.
Besides these tools a scraper is indispensable. The pat-
tern of scraper used on the New York roads, and after
long experience, highly approved in that State, differs
from that commonly in use among us, and also from any
which I have seen figured in works on road-making (as in
Gillespie, at page 155.) It is, however, cheap and simple.
The bottom board is usually of ash, from an inch to
an inch and a half thick; 4 feet 4 inches by 1 foot, sloped
at bottom, and shod with steel. At each end it has a stout
iron strap, running over it and down behind and before.
Above this is the top board, half to three quarters of an
inch thick; 4 feet by 9 inches, rounded at the upper cor-
ners. It has two back handles, passing behind both boards,
strongly fastened to the lower board by straps of iron,
bolts and nuts; and strongly nailed to the top-board. It
has also two side handles, projecting six inches; they
are part of the bottom board, the portion below being cut
out. The lower edge, of steel, may be secuied by bolts
and nuts. Part of an old saw-mill saw will answer.
This scraper requires two stout horses, attached to it by
a chain passing to two stout staples; and a man at each side.
Each man lays hold, with one hand, of one of the back
handles, and with the other of one of the side handles ;
and thus it can be managed with great facility.
In using this scraper to raise and convey earth from the
63
ditch to the road, the horses are not turned but backed-,
the men lifting up the scraper and carrying it back, as
soon as its load is discharged. It operates, after a little
practice, very rapidly.
In organizing a party to lay down the superstructure,
a stout ox-cart, three or four good yoke of oxen and a
pair of horses are requisite.
The exact number of hands required depends upon the
nature of the soil and the character of the old road, if
the plank road is to follow any old line; but may, under
favorable circumstances, be set down as follows :
To manage the plough, 2 hands.
" " " scraper, - - - 2 "
With shovels, to level off after scraper, 2 "
Laying stringers, 2 "
Handling plank, - - - - 2 "
To manage the roller, &c., - 1 "
Foreman, who lays the plank, - - 1 "
Total, - - 12 hands.
If the ploughing be very heavy, another hand may be
required at the plough; and so also of the scraper. If
any old stumps have to be removed, or other grubbing
done, that will be extra ; and if there be much of it, it
will be found profitable to construct a stump-extractor.
On the other hand, if the road be already well ditched and
tolerably graded, a smaller number of hands than twelve
will suffice.
The foreman ought to be a man of intelligence, good
judgment and mechanical ability. Upon his faithfulness,
sound judgment and strict attention to every minute detail,
the character of the road, as to construction, will in a
great measure, depend. The work cannot be slighted, if
64
he does his duty. If he fails to do so, it may seriously
effect the after profits of the road. He ought to be select-
ed, then, with great care, and well paid. On the Mount
Vernon road, he receives two dollars and a quarter a day.
To him is confided the charge of the hands; he keeps an
account of time, &c., with each, paying them off every
Saturday night; and he also keeps an account of the gen-
eral expenses of the party.
The careful preservation of the levels both the side
and longitudinal slopes of the road is an important part
of -his duty.
A party of good hands, under an experienced foreman,
will ditch, grade and lay down, in the best manner, on the
average, from 30 to 40 rods a day, sometimes more: say,
allowing for wet days, not less than half a mile a week;
at a weekly expense, probably, of about a hundred dollars.
This portion of the work, then, ought, under ordinary
circumstances, to cost, (without grubbing) about $200 per
mile : but the labor and consequent cost will vary, very
considerably, on different lines of road.
The general mode of proceeding (frequently varied,
however, by circumstances) is this. Suppose the plank is
to be laid on the right hand side of the road, the plough
goes first, ploughing up along the line of the right hand
ditch, and returning on the left. The scraper follows,
throwing up from the right hand ditch, and dropping the
earth regularly, as far, however, as the centre of the road
only. Two men follow the scraper, and level off careful-
ly with shovels. After the roller has passed, two other
hands form the stringer-furrows, and lay the stringers.
Two more bring the plank from small piles on the road
side; and the foreman, standing on the plank last laid,
sinks his crow-bar into the earth, just below the outer edge
65
of a new plank, as soon as the men lay it down, and with
a jerk forces it back to its place, occasionally adjusting it
edgeways by dropping the instrument at one or the other
end: then reversing the crow-bar, he pounds, with its flat-
tened head, along the line of the plank, ti'.l it settles down
to the level of the preceding one.
In the meantime, the scraper, having gained considera-
bly on the rest of the work, is brought back; the left hand
ditch is thrown up, to form the earth-road intended to turn
out upon. In so doing, the horses attached to the scraper
are driven on to the recently laid plank, and the earth lev-
elled to the upper edge of the plank, and usually about two
or three inches above it, to allow for settling. When the
roller has been past over this portion of the road, the
whole is complete and ready for use.
The foreman can lay somewhat more rapidly than the
ground is thus prepared for him; but he is frequently
called off to determine the levels, and inspect and direct
other portions of the work.
To avoid delay and useless labor in carrying the plank,
it is necessary that they should be laid down at regular in-
tervals, on both sides of the road, and that there should
be exactly the same amount in each pile. The stipula-
tion in our contracts is, "that the plank be laid down in
lots 64 feet apart, each lot containing about 658 feet of the
eight feet plank and four lengihs of the sixteen feet plank
(stringers), each lot on one side of the road to be opposite
the centre between two lots on the opposite side."
This amount of 658 feet (board measure) is for two
and a half inch pfank; if three inch plank be used,
the amount in each lot would be about 777 feet. The
easiest practical method, however, of getting at the quan-
5
66
tity, is to let the aggregate width of eight feet plank in
each lot be 32 leet.
This stipulation should be strictly enforced; as, if the
plank are dropped at irregular distances and the quantities
are not exact, the hands who handle the plank may have
to carry them a considerable distance; and thus the whole
party mav be seriously delayed. The importance of
avoiding this and all other sources of delay to such a party
will appear if we call to mind, that each working hour by
that number of hands, including expenses, costs nearly
two dollars.
As to the thickness of the plank, if the line on which a
plank road is to be constructed, be, at the tkne it is pro-
jected, pretty well travelled, say by an average of 15 to
20 teams each way each day throughout the year, I re-
commend three inches. If the travel be less, averaging 8
or 10 teams each way only, two and a half inches may
suffice. No road should be laid with plank thinner than
ahat, though two inch plank has been sometimes used.
And where the travel is great, say 50 to 100 teams each
way a day, I think four inch plank would be found the
most profitable. If of hard wood, the width ought not to
exceed ten inches. If of soft wood it might run up to a
foot. It should not be less than five inches.
I think it best to make the stringers the same thickness
as the plank and twice the length, that is, sixteen feet.
Whether single or double, they should be 5 or 6 inches
wide. The stringers may thus, on occasion, be used as
plank, and vice versa.
The specification in regard to plank in our contracts, is,
that it shall be ' either of white oak or post oak or burr
oak or chinkapin oak, or black walnut or red elm or mul-
berry; and to be from good and sound timber, free from
sap, bad knots, shakes, wanes and other imperfections irn-
67
pairing its strength and durability; to be full on the edges
and of the full thickness specified." On the principal
hills, however, we h-ave specified, that ii shall be of the
best yellow poplar; as we did not feel assured but that
horses, with heavy loads, might, in wet weather, slip on
the hard wood, on these ascents.
In New York hemlock is the timber chiefly employed.
it wears much more rapidly than white oak; and when
considerably used, its surface becomes rough, on account
of the frequent hard knots, unworn and projecting from its
surface. Pine is chiefly employed in Canada, and is more
durable than hemlock.
Hemlock commonly costs, in New York, 86 a thousand
(board measure.) Our plank cost us, delivered, 89 a thou-
sand ; but if there had been a sufficiency of good steam or
water mills along the line of our road it could, doubt-
less, have been had for 87 to 88. Putting it at 88 a thou-
sand, delivered, in regular proportions, along the line of
road, the whole of the plank, including stringers, would
cost, per mile, at the different thicknesses, as follows :
TWO AND-A-HALF INCH: WITH SINGLE STRINGERS, FIVB
INCHES WIDE.
Surface plank, 8 x 2 x 5280105,600 at $8 $844 80
Stringers, 10-12 x 2i x 5280 11,000 at 88 88 00
Inch plank, to underlay stringers, 660 at 88 5 28
Total cost of plank, per mile, 1 1 7,260 feet 8938 08
THREE INCH: WITH SINGLE STRINGERS, six INCHES WIDE.
Surface plank, 8 x 3 x 5280126,720 at 88-81013 75
Stringers, 1 x 3 x 5280 15,840 at 88 126 72
Inch plank, to underlay stringers, 660 at 88 5 28
Total cost of plank, per mile. 143,220 feet $1145 76
TOUR INCH: WITH DOUBLE STRINGERS, six INCHES WIDE.
Surface plank, 8 x 4 x 5280168,960 at 88 1351 68
Stringers, 2 x 4 x 5280 42,240 at $8 337 92
Total cost of plank per mile, 2 11. 200 feet 1689 6O
On the Mount Vernon road, of fifteen miles, as the plank
is delivered at the rate of about two miles a month, a sin-
gle party suffices to lay down the superstructure. To
afford greater facility in moving from place to place, where-
ever the plank are ready for them, they are provided with
a couple of tents, and are supplied with board. This ar-
rangement, rendering the party independent of board and
lodging in the neighborhood, facilitates the preservation of
good order among them, and enables them to be readily
brought together at the regular hours of work.
From 15 to 17 miles of road is as much as a single
party, say of 12 to 14 hands, can be expected to lay down,
in the course of a season, beginning as early in the spring
as the work can be profitably undertaken and ending at the
setting in of winter.
CHAPTER VIII.
TOLLS AND TOLL GATES.
Toll gates are commonly placed an average of six miles
apart; and one is usually erected from one to two mile.*
from any considerable town. Their exact location is often
governed by the point at which a cross road, of any im-
portance, strikes the main line.
The usual pay of a toll-gate keeper is ten dollars a
month, besides a free house and garden spot ; and, under
ordinary circumstances, the man follows some trade, while
his wife or child attends the gate. But where the amount
of travel is verv great, extending through a portion of the
night and demanding the gate-keeper's constant attention,
as in the case of the toll-gate already mentioned two miles
from Syracuse, twenty dollars a month, besides house and
garden, is given.
The gate-keeper is required to keep a small account
book, in which he sets down the gross receipts of each
day. This he hands monthly to the Secretary, who copies
and returns it to him. He is not usually required to make
oath to his accounts, but gives security, usually in the sum
of five hundred dollars. He settles, on some roads daily,
on some weekly, on some monthly, with the Treasurer.
In Canada, instead of paying the gate-keeper a fixed
salary, the usual custom is, to farm out each gate to the
highest bidder. This plan is not, 1 think, suited to the
present condition of our Western country, in which the
amount of travel is exceedingly uncertain, and often in-
creases, in a brief period, in an unexpected proportion.
The toll-gate-keeper is required to open his gate to the
traveller, at all hours of the day and night, Sunday in-
cluded.
The limit of toll and the legal exemptions therefrom are
fixed in each State, by the General Plank Road Law;
sometimes by special Act of Incorporation. The only ex-
emptions by the law of our State, are in favor of " per-
sons going to and from lunerals, and soldiers of the United
States or of this State, while in actual service." A road
company may, of course, add other exemptions; but this
is not customary except in favor of its Board of Directors,
each of whom, during his term of service, is usually al-
lowed to pass, either on horseback, or with his family or
others in his own carriage, toll-free. This frank, however,
is personal only, and does not extend 10 wagons or goods
belonging to a Director.
The limit of toll diiTers in different States; and may
reasonably be put lower in an old settled country, than in
a new and thinly populated one. By the General Plank
Road Laws of New York, Kentucky, Indiana and Illinois*
it is fixed as follows :
UNDER THE LAW OF NEW YORK.
For every horse and rider, not more than ct. per mile.
" " one-horse vehicle do f "
" " two-horse vehicle do li "
" " three-horse vehicle do 2 "
" " four-horse vehicle do 2i "
" " score of cattle, hogs or sheep 1 "
UNDER THE LAW OF KENTUCKY.
For every horse and rider, not more than 1 ct. per mile.
" " one-horse vehicle do 2 "
*' " two-horse vehicle do 3 "
" " three-horse vehicle do 4 "
" " four-horse vehicle do 5 "
li " score of cattle do 10 "
' " " " sheep or hogs do 1 "
UNDER THE LAW OF INDIANA.
For every horse and rider, not more than 1 ct. per mile.
" " one-horse vehicle do 1 "
" " two-horse vehicle do 2 "
" " three-horse vehicle do 2 "
" " four-horse vehicle do 3 "
" " score of cattle, mules or asses 5 "
" " " " sheep or hogs do 2 "
71
UNDER THE LAW OF ILLINOIS.
For every horse and rider, not more than 1 ct. per mile-
" " one-horse vehicle do 2 "
" " two-horse vehicle do 3 "
" " three-horse vehicle do 34 "
" " four-horse vehicle do 4 "
" " score of cattle, sheep or hogs 2 "
The question has ofien arisen, whether, on a tolled road.
he distance between the gates, or the number of miles
actually travelled, or intended to be travelled, shall be the
measure of the toll collected. The legal decisions have
been in favor of the former construction. In the case of
Stewart v. Rich. 1 Caines, 182, the opinion given by
Judge Kent was as follows : "The idea that the Company
must vary the toll at every ten-mile gate on the suggestion
that a person has used the road for a less distance than ten
miles is inadmissible, because impracticable. The toll-
gatherer has no means of knowing whether the traveller
has rode ten miles, or a less distance, previous to his arri-
val at the gate. If this suggestion was allowed to be a
ground of reduction of toll, it would open a door to the
greatest imposition and fraud upon the Company."
So, also, in the case of the People v. Kingston and
Middietown Turnpike Company, 23 Wendell, 193, where
the words of the Act incorporating the Company, were,
" the following rates of toll for every ten miles, and in the
same proportion for a shorter distance," the Court (Nelson
C. J.) decided : " This clause refers to the distance between
Ike gates; if that be five miles, the corporation may de-
mand half toll; if it be two and a half miles, they may
demand a quarter toll, and so in proportion." In the same
case Judge Cowan gave an opinion similar to Judge Kent's:
" The replications leave it to be taken as admitted, that
this proportion was fixed according to the distance of the
gates, and merely find fault that it was not limited to the
distance of actual travel, as five, three or one mile, or half
a mile. Such a construction would leave every traveller
to estimate his own toll, and make it utterly impracticable
for the toll-gatherer to perform his duty. It would lay
him open to continual imposition." p. 220.
It is worthy of remark, however, in this connection,
that the Plank Koad Law of this Slate contains a provis-
ion which I have not noticed elsewhere. It is, that " if
any person or persons using any part of such road shall,
with intent to defraud said Company, pass through any
private gate ^r bars, or along any other gruund near said
road, to avoid anv toll-gate, or shall make any untrue
statement as to the distance he or they may have travelled
or intend to travel on the road, or shall practice any frau-
dulent means," &c., they shall for every offence forfeit
and pay to such Company the sum of three dollars," &c.
No legal decision has yet, I believe, been had, on this point,
under our law ; and, if any case were contested, the plea
would doubtless be set up, that, by the enactment of the
above penalty, it is fairly to be inferred, that the law
contemplated the trusting to the averment of the traveller
as to the number of miles for which he was liable for toll,
whether already travelled or still to be travelled.
On the other hand, if such a principle is to be admitted
at all, and if the number of miles of road actually used by
the person presenting himself, is to be, in each instance,
the measure of the toll, it would be difficult to say, why
the gate-keeper has not the right to enquire, whether, in
the interval between the last payment of toll and the pre-
sent, the individual in question has not, on different days,
used portions of the road between gates without paying for
73
the same; and if he has, why the gate-keeper should not
require, under a penalty of three dollars, a siatement of
the various distances thus travelled, though at intervals of
days or weeks, and adding them togeiher, demand pay-
ment of toll upon the whole. Again, suppose that a per-
son, in passing a gate declares his intention of going two
miles further only, thinking there to meet a neighbor with
whom he has business, and paying toll for two miles only;
but not finding his neighbor there, rides on two miles furth-
er in search of him ; is to be fined three dollars for false
representation? or, if not, is he, the next time he passes
the gate, to correct his statement, and pay for the two addi-
tional miles?
It is impossible, under any system of tolls, that, in every
individual instance, the traveller should pay for the precise
number of miles he has used. The advantage will some-
times be with him, sometimes with the Company. And
the principle above referred to seems to me so impractica-
ble of application, under the varying chances of travel,
that I believe the decision under our law will be, as else-
where it has been, against it.
In the case of persons living near a gate-house, a sys-
tem of commutation, at fair rates, will remedy much of
the apparent injustice of charging full toll for a short dis-
tance.
The frontispiece to this volume gives the plan of an
economical and convenient gate-house, copied, with some
modifications, from the model adopted on the Cazenovia
road, and for a plan of which I am indebted to my friend,
General Hough, of Cazenovia. Its cost, including a two
acre lot of ground for garden and orchard, may be set
down at 8350 to $400 say 75 per mile. It will be per-
ceived, that it affords shelter to the traveller, while stop-
ping to pay toll.
74
In the plan, A is the living room, 15 by 17 in the clear,
besides a recess for a single bed. c. B is a small bed-
room, with bed, b; and is 74 by 10 besides the recess
where ihe door opens. C is a pantry, 7 feet by 7|, with
shelving, d. d. E is a summer kitchen and wood shed
10 by 18. G is the toll-bar, under cover, the roof
being continued to the frame II K. D is a portico, open
in front to the road, with step, e, e, 18 inches wide; n is
the cellar landing and m the landing from the attic.
This toll-gate house, 18 by 30, or including the cover-
ing which extends over the plank road, 18 by 42, is a
story and a half high, the side walls in the attic story hav-
ing 4 feet perpendicular height. It has a stove chimney
for the cooking stove, a, commencing on the second floor.
The attic story may be merely closed in. There is a cel-
lar, 6 feet deep and 12 feet square; which, in many soils,
can be finished cheaply and substantially enough, by dig-
ging the sides with a slant and plastering with hydraulic
lime, instead of brick walls.
It will be observed, that when the toll-bar is closed at x,
foot passengers, by stepping into the portico, can pass
around the post, x; and that the arrangement of the house
is especially adapted, so that a woman or children can at-
tend to the domestic work, and still tend the gate.
CHAPTER IX.
CAPABILITIES OF PLANK ROADS.
Horse power is a matter of very uncertain calculation,
75
notwithstanding the numerous experiments that have been
instituted to determine it. It must, to a certain extent,
ever remain arbitrary. The half-starved woods-colt, put
to work before he is three years old, and the portly dray-
horse of the London streets, belong, indeed, to the same
species, but the limit of power in the one is so far beyond
that of the other, that an accurate average between ex-
tremes so wide, is difficult to be found.
The usual conventional estimate of the power of one
horse per day, is, 150 Ibs. moved at the rate of two miles
and a half an hour for 8 hours ; that is, 150 Ibs. moved 20
miles a day. This is the equivalent of Watt's horse pow-
er; which he put at 33,000 Ibs. raised one fool in one
minute. Tred^old gives 125 Ibs. instead of 150; Smeaton
gives 107; Hackette, 128; Gaiffier, for a strong horse,
143 Ibs., 22 miles a day at the rate of two miles and three
quarters an hour; and for an ordinary horse 121 Ibs. for
25 miles at the rate of two miles and a half an hour.
Amontons calculates, that two horses attached to a plough,
on moderate ground, exert each a force of 150 Ibs.; and
Mr. Geddes of Syracuse, informed me, that the result of
various experiments made on different two-horse ploughs
of approved construction, at an agricultural fair in that
neighborhood, showed a traction, under ordinary circum-
stances, varying from 300 to 500 Ibs. Nor is the direc-
tion of force to draw a plough the most favorable for a
horse ; the line of direction should be level with his
breast. Desaguliers says a horse can draw 240 Ibs. for
six hours a day. And it is said, that a horse of extraordi-
nary power has, for a momentary exertion, drawn as much
as 800 Ibs.
The power of draught decreases sensibly as the velo-
city increases. Most writers set down the power of a
horse going five miles an hour at cbout half the power of
76
the same horse going 2 miles only; and estimate, that the
power is reduced to one quarter, if the velocity be increas-
ed to 8 miles an hour.
Again, on steep grades, horse power rapidly diminishes.
If continued exertion for 8 or 10 hours a day be demanded
of a horse, the usual estimate is, that up an ascent of 1 in
7 he can carry his own weight only.
I incline to put the power of a wagon horse, of ordinary
quality, such as we use here in the West, at 100 Ibs.,
moved at a common walk, 20 miles a day. His regular,
continued exertion on a level should not, I think, exceed
three-fourths of that amount; and, on the steepest hill, it
should not more than double it. In other words, the entire
traction of a one-horse load, wagon included, should not,
on a level, exceed 75 Ibs.; nor, on a hill should it go be-
yond 200 Ibs. Some horses, of course, can do more than
this, with gi^at facility. List winter, on the Boonville
(.N. Y.) plank road, two horses drew over three miles a
wagon loaded with 12,500 Ibs. of stone. The road was
not level, though its grades were moderate. The horses,
however, were picked animals, and it was a trial of what
they could do. They performed the task readily and
without injury.
Again, from Chittenango to Cazenovia, with a total as-
cent of 750 feet in 9 miles, and several grades of a foot to
a rod, two horses not unfrequcntly haul 6,000 Ibs. From
4,500 to 5,000 is, however, a more ordinary load.
These are all above the average I have set, but in other
cases, horses of inferior breed and in bad order will not
come up to it. I put it down, then, as a fair average.
If this standard be conceded (and it is considerably be-
low that adopted by most writers) its application will
readily show us the capabilities of plank roads.
The traction, at a walk, on a well made plank road, has
77
been set down (in chapter 5) on a level, at 40 Ibs. to the
ton; and on an ascending grade of 1 in 30, the amount to
be added is 66| Ibs. to the ton.
Let us suppose, now, that on such a road, on which the
maximum limit of grade is 1 in 30, a strong wagon, such
as is now usually drawn by four horses and may weigh
1500 Ibs., is loaded with three tons, nett; or 6,000 Ibs
The entire load including the wagon being 7,500, Ibs. its
traction will be, on a level 150 Ibs., and on a hill with an
cscem of 1 in 30, 150 f 250400 Ibs. If this wagon
thus loaded be drawn by two horses, each will draw, on a
level 75 Ibs. and on the steepest hill 200 Ibs.; being the
exact limit proposed in a previous paragraph.
If the assumed data be correct, it follows, that on such
a road, tico wagon horses, of ordinary strength, will draw,
without over exertion, a wagon loaded with 6000 Ibi.
Let us compare this with the capabilities of an ordinary
earth road, on which I have put the traction, on a level, at
120 Ibs. ; and let us suppose the limit of highest grade to
be 1 in 12, a rate of ascent common on an unimproved
road. Say that a common two-horse wagon, weighing
1000 Ibs. be loaded wiih one ton. The wagon and load
being 3000 Ibs., the traction on a level will be 180 Ibs.
and on the steepest hill it will be 180 f 255435 Ibs.
Thus, with a load of three tons on the plank road, the
draught on a level is not as great by 30 Ibs. and on the steep-
est hill by 35 Ibs., as with a load of a single ton on the earth
road. But as, on easy ascents, the earth road has some-
what the advantage of the plank road, (the traction on the
light load increasing bat slowly) it might perhaps be fair to
say, that THE CAPABILITIES OF THE PLANK ROAD ARE THREE
TIMES AS GREAT AS THOSE OF THE EARTH ROAD.
It must be borne in mind, however, that this is true only
78
of plank roads on which the grades are brought down to
1 in 30. It has already (in chapter 5) been shown, that
when the maximum grade runs up to one foot rise in a
rod, the capability of the road is reduced by one third;
and consequently the power of a plank road with such a
grade is but double that of an earth road, on which the
steepest ascent is 1 foot rise in 12.
In comparing the two roads, however, it ought to be
borne in mind, that the plank road can be used at all times
and seasons; while the earth road is sometimes absolutely
impassable for wagons; and is often in winter, for weeks
at a time, so deep in mud, that 500 Ibs. is a full load for a
two-horse 4eam.
This consideration is the more important, because it is
in winter, if the roads permitted, that the farmer's chief
hauling would be done. Plank roads would enable the
farmer to dispense with credit in many cases, where he
must now demand it} for, at whatever season of the year
he came to town to make his purchases, he could bring
with him the produce required to pay for these. As it is,
roads nearly or quite impassable render it impossible for
him to do so. And again, if he knew that he could haul
at all seasons, he could make his calculations as to the de-
livery of produce with certainty and without risk of dis-
appointment.
There is yet another item in the calculation of compar-
ative capabilities well worth noticing. It has been found
in practice, that the time consumed to make any given trip
on a plank road is from one-fourth to one-third less than
it is on the common road. The pace is quicker. Return
teams usually travel at a trot. There is no detention by
mud-holes, or corduroy bridging, or other bad spots prolific
of accident and delay. But the gain of one-third, or even
79
one-fourth, of the time of a team and teamster, continually
repeated, forms an item of very considerable importance,
in the course of a year.
The mere average increase of power, then, however
great and however important in itself, is not the sole meas-
ure of the advantage to be derived from the plank road.
Not only is the new servant three times as strong as the
old one; but he is always ready, storm or sunshine, never
refuses to serve, and executes our behests in one-third or
one-fourth less time than his dilatory predecessor.
CHAPTER X.
COST, DURABILITY AND EEPAIRS.
An estimate of the average cost of plank roacis must, of
necessity, be somewhat uncertain, and must vary in dif-
ferent portions of the country, according to the coat of
plank, and still more on different lines of road according
to the amount of grading and bridging required. This lat-
ter item, if a maximum grade of 1 in 25 or 1 in 30 be
established, may perhaps be fairly averaged at $400 per
mile. White oak plank may be safely set down at $8 a
thousand, board measure, and will probably be found to
average less.
If, then, we assume 3 inches as the thickness of the
plank, with single stringers 6 inches wide and without turn-
outs, the entire cost of the finished road, per mile, may be
averaged as follows :
80
ROAD OF WHITE OAK PLANK, THREE INCHES THICK.
Cost of plank, delivered, as in chapter 7, - $1,145
" of ditching, shaping and laying, do - - 200
" of grading and bridging, - - . 400
Cost of gate-houses and lots, as in chapter 8, - 75
Engineering, superintendence and contingencies, say 180
Total cost of road, per mile, 2,000
If 2 inch plank be employed, the cost will be about
200 a mile less. -If wooden turn-outs be necessary
along the whole line, say each forty feet long and occur-
ring at an average distance from each other of 528 feet, or
len to the mile, and laid with 2 inch plank, there must be
added something less than 8100 a mile.
I put the average cost, then, of plank roads, with their
gate-houses, complete and ready for use, at two thousand
dollars per mile. In Western New York they have not
averaged so much. The Syracuse and Central Square
road cost 81487 per mile; but lumber was obtained at 5
20 a thousand. The Rome and Oswego road, 62 miles,
cost 81,300; lumber at 84 to 85 a thousand. The Utica
northern road cost nearly 82,000 a mile, five miles, how-
ever, being through the forest, at a cost for clearing, of 8500
a mile. Near Detroit, with lumber at 86 a thousand, a
plank road cost $1,500 a mile.
The New York roads, however, are built of hemlock, a
soft wood, though not liable to rot. My estimate is for
white oak, which I believe, will bear 50 per cent, more
travel than hemlock, with the same wear. If so, on all
roads where the plank is worn out instead of rotting out,
white oak at 88 is as cheap as hemlock at 85 33.
As to the durability of the former that must be, to some
extent, a matter of conjecture, and will doubtless vary, on
81
roads on which the plank rots before it wears out, accord-
ing to the nature of the soil on which the plank rests.
It has been proved, on the Syracuse road, that 160,000
teams, passing over its first 8 miles in two years, wore
down the hemlock plank (where it rested solidly on the
ground) one inch, 1 believe it wouli require 240,000
learns to wear white oak plank down as much. If three
inch plank be used, it may be worn down full two inches
before it need to be replaced. Consequently 480,000
teams, or say in round numbers half a million teams may
pass over it before it is worn out.
This may seem too high a calculation; but Gillespie
{Roads and Rail Roads, p. 247) informs us, that, on a
Canada pine road, over which passed upwards of 50,000
teams a year, the road had worn, in two years, only one
quarter of an inch. But if 100,000 teams wore the plank
down but a quarter of an inch, 500,000 would wear it an
inch and a quarter only. This more than justifies* my
estimate, that white oak would receive 500,000 teams, be-
fore it wore down two inches.
It is found also, bv experience, that the first year's wear
on a plank road is greater than that of any year following.
The first travel on the road tears off the outer splinters
and fibres which the saw has cut across; the road brooms
up, as it is called; and the coating formed by eaith and
sand settling into its surface protects it from wear.
I assume, then, that good three inch white oak plank,
solidly laid down, will bear the passage of half a million
of teams before it is worn so thin that it requires removal.
As to the natural decay, hemlock is said to last on an
* Gillespie (p. 248) states, that oak plank cross walks in Detroit, the
plank, laid flat on ths ground, lasted two or three times as long as those
of pine.
6
82
average seven years. The pine roads in Canada last from
seven to twelve. I think white oak may be estimated to
last half as long again, without rolling, as either hemlock
or pine. Gillespie's statement, in the footnote below,
would justify a much more favorable estimate. But, as a
safe calculation. I think we may assume, that a white-oak
road will last 12 years without rotting. Gillespie gives it
as his opinion, that "oak plunk, well laid, will last at least
12 or 15 years."
If the limit of natural decay for white oak be put at 12
years and the wear be set down at 250,000 teams for each
inch of plank, and it is considered necessary to renew the
road when the plank has worn in the center to one inch in
thickness, then it follows, that, unless there be expected an
annual average, throughout the 12 years, of more than
15,000 teams each way, (that is, over 40 teams each way
each day) a road laid with 2| inch plank will last as long
as one laid with 3 inches.
For to wear 2| inch plank down to 1 inch, it will re-
quire 375,000 teams. Divide by 12, and we have upwards
of 30,000. Thus 30,000 teams, or 15,000 each way, a
year, for 12 years, will not wear out 2 inch white oak
plank.
In chapter 7, I have recommended three inch plank
where the average travel, on the old road, is found to be
15 or 20 teams each way each day, at the time of the pro-
jection of the plank road : because all experience proves,
that the travel may be expected rapidly to increase; pro-
bably to double itself in the first year. On the Syracuse
road, as I have already had occasion to state, it more than
trebled in that time.
As to the current annual repairs, Mr. Alvord, of Salina,
in whose judgment I place confidence, expressed to me
83
his opinion, the result of much experience, that on a plank
road well laid down and completely finished at first, the
average annual repairs, independent of removal, ought not
to exceed ten dollars per mile. The estimate of a Cana-
dian engineer is somewhat higher ; he puts it at $20 the
first year; 10 a year for the next 5 years; and then in-
creasing yearly, until the entire renewal. But I am of
opinion that an average of 810 per mile is sufficient, if
the road be well made. On 3 miles of the Syracuse road,
which had been laid down with care, the entire repairs,
throughout two years, had not exceeded 815; that is, but
little more than two dollars a mile, each year.
A trustworthy man, owning a horse and cart, should be
employed, to pass over the road occasionally, especially
after a storm or a succession of rainy days, clearing away
obstructions, opening choked-up ditches and doing what-
ever other repairs are necessary; and he should either be
allowed to charge for whatever time he is actually em-
ployed and whatever labor he may find it necessary to hire,
to assist him on extra occasions ; or else he might take
the annual repairs by contract at 10 a mile, or such oth-
er rate as might be agreed on, paying all extra assistance
himself.
We are thus furnished with the data whereby to calcu-
late, with a reliable approach to certainty, the profits to the
stockholders, which may be reasonably expected, on va-
rious lines of plank road.
CHAPTER XI.
PROFITS OF PLANK KOADS.
I know of no species of public improvement whatever,
that promises, or that has heretofore produced, profits u>
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-
o<i to construct.
105
29. If any person entitled to receive the amount of any such verdict
be not a resident of this state, or cannot be found therein after diligent
search, the company may furnish to the saiJ judge satisfactory proof, by
affidavit, of such tact, and he shall thereupon make an order that the
amount of such verdict be paid to the treasurer of the county in which
the lands lie, in respect to which such verdict was found for the use of
such o\vner, and that notice of such payment shall be given by publish-
ing the same once in each week, for six successive weeks in a newspa-
per published in the county. On satisfactory proof being made to the
said judge, by affidavit, within three months from the time of making
the last mentioned order, of such payment and publication, he shall
make an order authorizing the company to take and hold the land in re-
spect to which such verdict was rendered, in the same manner and with
the same effect as i f such payment had been made to the owner person-
ally. The affidavit and orders mentioned in this section, and all other
affidavits and orders made, and precepts issued in the course of the pro-
ceedings under this act, in relation to the acquisition of the land to be
used for such road, shall be hied in the county clerk's office, and all such
orders shall be recorded by such clurk in the records of deeds, at the ex-
pense of the company.
30. If any owner shall apply for a new trial, the company, upon de-
positing the amount of the verdict sought to be set aside, in such man-
ner as the said judge shall, upon hearing the parties, direct, in trust that
the same or so much thereof as the said owner shall be entitled to re-
ceive, shall be paid to him on demand, and on giving such security, by
bond, as the judge shall approve, for the payment to such owner of any
sum which he may be entitled to receive from the company, in respect
to the land in question, by reason of any verdict or the judgment of any
court, for such compensation, damages, costs and expenses, the company
may enter upon and use such lands for the purposes of such road, but
the title of the owner thereof shall not be divested until the payment or
legal tender to him of the whole amount which he shall be entitled to
receive from the company for such compensation, damages, costs and
expenses ; and on such payment or tender being made, the company
shall be entitled to take and to hold such lands to it and to its assigns so
long as the same shall be used for the purposes of such a road as such
company was formed to construct.
31. Every plank road made by virtus of this act, shall be laid out at
least four rods wide,* and shall be so constructed as to make, secure and
* By Chapter 360, laws of 1848, the commissioners are authorized to de-
termine the width. By Chapter 250, of laws of 1849, Section 7, the inspec-
tors are authorized to determine the width, in case the same has not been
determined by the commissioners, but in no case are the outer limits to be
more than four rods apart without the voluntary sale of the land by the
owner.
106
maintain a smooth and permanent road, the track of which shall be 1
made of timber, plank or other hard material, so that the same shall
form a hard and even surface, and be so constructed as to permit car-
riages and other vehicles conveniently and easily to pass each other, am'
also so as to permit all carriages to pass on and off where such road is
intersected by other roads.
32. Every turnpike road that shall be constructed by virtue of this act.
shall be laid out at least four rods wide ; and shall be bedded with stone
gravel or such other materials as may be found on the line thereof, anc
faced with broken stone or gravel, so as to form a hard and even sur.
face, with good and sufficient ditches on each side "wherever the same is
practicable. The arch or bed of such road shall be at least eighteen feet
wide, and shall be so constructed as to permit carriages and other vehi-
cles conveniently to pass each other, and to pass on and off such turn-
pike where it may be intersected by other roads.
33. In each county of this state, in which there shall be any plank
road, or turnpike road, constructed by virtue of this act, there shall be
three inspectors of such roads, who shall not be interested in any plank
or turnpike road in such county. They shall be appointed by the board
of supervisors of the county, and shall hold their offices during the pleas-
ure of such board. Before entering on their duties, such inspectors shall
take and subscribe the constitutional oath of office, and file the same in
the office of the clerk of the county.
34. Whenever any such company shall have completed their road, or
any five* consecutive miles thereof, it may apply to any two of the in-
spectors to be appointed pursuant to this act, in the county where said
road or a part thereof, so completed and to be inspected is located, to in-
spect the same ; or if such inspectors, or a majority of them, are satis-
fied on inspection, that the road so inspected is made and completed ae-
cording to the true intent and meaning of this act, they shall grant a
certificate to that effect, which shall be filed in the office of the county
clerk. The inspectors shall be allowed two dollars per day for their ser-
vices pursuant to this section, to be paid by the company whose road
they inspect
35. Upon filing as aforesaid such certificate, the company owning any
plank road so inspected, may erect one or more toll gates upon theii
road, but not within three miles of each other, and may demand and re-
ceive toll, not exceeding one and a half cents per mile for any vehicle
drawn by two animals, and for any vehicle drawn by more than two
animals, one-half cent per mile for every additional animal ; for every
vehicle drawn by one animal, three-quarters of a cent per mile ; for
* By Chapter 250, of laws of 1849, Section 4, it is provided that when three
consecutive miles are completed, the inspectors may be called on, &c.
107
every score of sheep or swine, and for every score of neat cattle, one
cent per mile ; for every horse and rider, or led horse, half a cent per
mile. [In no case shall any plank road company charge or receive rates
of toll which will enable said company to divide more, 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 keeping the road in re-
pair, and appropriating not exceeding ten per cent, per annum on. their
capital stock actually paid in and invested in their road after keeping
ths road in repair, and appropriating not exceeding ten per cent, per an-
num on their capital stock invested as aforesaid, as a fund for the recon-
struction of their road when necessary.]*
36. Upon filing such certificate as aforesaid, the company owning any
turnpike road so inspected, may erect one or more to 1 ! gates upon its
road, but not within three miles of each other, and may demand and re-
ceive toll not exceeding the following rates : For every vehicle drawn by
one animal, three-quarters of a cent a mile; for every vehicle drawn by
two animals, one and one-quarter cents a mile ; and for every vehicle
drawn by more than tsvo animals, one and one quarter cents a mile ; and
one quarter cent additional a mile for every animal more than two ; for
every score of neat cattle, one cent a mile ; for every score of sheep or
swine, one-half cent a mile ; and in the same proportion for any greater
or less number of neat cattle, sheep or swine ; for every horse and rider
or led horse, one-half cent a mile ; and in no case shall any such turn-
pike company charge or receive rates of toll which will enable it to di-
vide more than twelve per cent on its capital stock actually paid in, in
cash, and invested in its road, after paying the expenses of managing
the same, and keeping it in repair.
37. The commissioners of highways of any town in which a toll gate
may be located on any such road, or in an adjoining town, whenever
they or a majority of them, shall be of the opinion that the location ol
such gate is unjust to the public interest, by reason of the proximity of
diverging roads, or for other reasons, may on at least fifteen days writ-
ten notice to the president or secretary of the said company, apply to the
county court of the county in which such gate is located, for an order to
alter or change the location of the said gate ; the court, on such applica-
tion, and on hearing the respective parties, and on viewing the premises,
if the said court shall deem such view necessary, shall make such order
in the matter, as to the said court may seem just and proper; and either
party may, within fifteen days thereafter, appeal from such order to the
supreme court, on giving such security as said county judge shall re
quire ; such order, unless appealed from, shall be observed by the re-
spective parties, and may be enforced by attachment or otherwise, as the
* Repealed by Chapter 250 of laws of 1843, section 0.
108
said court shall direct : And if appealed from, the decision of the su-
preme court, may direct the payment of costs in the premises, as shall
be deemed just and equitable.
38. The business and property of such company, shall be managed
and conducted by a board of direclors, consisting of not less than five
nor more than nine, who, after the first year, shall be elected at such
time and place as shall be directed by the by-laws of such corporation,
and public notice shall be given of the lime and place of holding such
election, not less than twenty days previous thereto, in a newspaper
printed in each county in or through which the road of such company is
located ; 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 ; 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 ; the directors shall hold their office
for one year and until others are elected in their places; no person shall
be a director unless he is a stockholder in the company, and no stock-
holder shall be permitted to vote at an election for directors, on any
stock except such as he has owned for the thirty days next previous to
the election.
39. The directors of any company incorporated under this act, may
require payment of the same subscribed to the capital stock, 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 all previous
payments thereon ; and they shall give notice of the payments thus re-
quired, and of the place and time, when and where the same are to be
made, at least thiny days previous to the payment of the ,same, in one
newspaper printed in each county, in or through which their road is lo-
cated, or by sending such notice to such stockholder by mail, directed to
him at his usual place of residence.
40. The shares of any company formed under this act, shall be deem-
ed personal property, and may be transferred as shall be prescribed by
the by-laws of such company ; the directors of every such company,
may, at any time, with the consent of a majority, in amount, of the
stockholders in such company as may be necessary to finish the making
of a road actually commenced and partly constructed, but the whole
capital stock of any company, shall not exceed five thousand dollars per
mile, for each mile of road.
41. It shall be the duty of the directors of every company formed un-
der this act, to report annually, to the secretary of state, under the oath
of any two of such directors, the cost of their road, the amount of all
1C9
money expended, the amount of their capital stock, and how much paid
in, and how much actually expended; the whole amount of tolls or
earnings expended on such road ; the amount received during the year,
lor tolls, and from all other sources, stating each separately, the amount
of dividends made, and the amount set apart for a reparation fund, and
the amount of indebtedness of such company, specifying the object lor
which the indebtedness accrued.
42. Within two weeks after the formation of any company, by virtue
of this act, the directors thereof shall designate some place within a
county in which, according to the articles of association of such com-
pany, its roads, or some part thereof, is to be constructed, as the office of
such company ; and shall give public notice thereof, by publishing the
same in a public newspaper, published in such county, which publica-
tion shall be continued once in each week, for three successive weeks,
and shall file a copy of such notice in the office of die county clerk of
every county, in which any part of such road is constructed or is to be
constructed. And if the place of such office shall be changed, like no-
tice of such change shall be published and filed as aforesaid, before it
shall take place, in which notice, the time of making the change shall
be specified. And every notice, summons, declaration or other paper
required by law to be served on such Company, may be served by leav-
ing the same at such office with any person having charge thereof, at
any time between nine o'clock in the forenoon and noon, and between
two and five o'clock in the afternoon, of any day except Sunday.
43. It shall be the duty of the directors of any such company, to cause
a book to be kept by the secretary, treasurer or clerk thereof, containing
the names of all persons alphabetically arranged, who are, or shall,
within six years, have been, stockholders of such company, and showing
their places of residence, the number of shares of the stock held by them
respectively, and the time when they respectively become the holders of
such shares ; which book shall, from nine o'clock in the forenoon until
noon, and from two o'clock in the afternoon until five, on every day ex-
cept Sunday and the fourth day of July, be open for the inspection of all
persons who may desire to examine the same, at the office of such com-
pany, and any and every person, shall have the right to make extracts
from such book, and no transfer of stock shall be valid for any purpose
whatever, except to render the person to whom it shall be transferred,
1 able for the debts of the company, according to the provisions of this
act, until it shall have been entered therein, as required by this section,
by an entry showing to and from whom transferred. Such book shall
be presumptive evidence of the facts therein stated, in favor of the
plaintiff in any suit or proceeding against such company or against
any one or more stockholders, or against such company and one or more
110
stockholders jointly. Every officer or agent of any such company, who
shall neglect to make any proper entry in such book, or shall refuse or
neglect to exhibit the same, or allow the same to be inspected and ex-
tracts to be taken therefrom, as provided by this section, shall be deemed
guilty of a misdemeanor, and the company shall forfeit and pay to the
party injured, a penally of fifty dollars for every such neglect or refusal,
and all the damages resulting therefrom. And every company that shall
neglect to keep such a book opsn for inspection as aforesaid, shall for-
feit to the people the sum of fifty dollars for every day itshall so neglect,
to be sued for and recovered in the name of the people, by the district
attorney of any county in or through which the road of such company
shall be constructed, or shall be, according to its articles of association
intended to be constructed, and when so recovered, the amount shall be
paid in equal portions to every such county for the use thereof.
44. 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 the stock they
have severally subscribed or held in said company over and above
such stock, to be recovered of the stockholder who is rach, when the
debt is contracted, or of any subsequent stockholder, and any stockhold-
er who may have paid any demand against such company, either volun-
tarily or by compulsion, shall have a right to resort to the rest of the
stockholders who were liable to contribution ; and the dissolution of any
company shall not release or affect the liability of any stockholder
which may have been incurred bsfore such dissolution.
45. 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.
46. In any action against any company formed 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
plaintifPs claim ; and if judgment be given against such company, in
favor of the plaintiff for his claim or any part thereof and any one or
more of the stockholders so made defendants, shall be found to be liable
as aforesaid, judgment shall also be given against him or them, and
shall show the extent of his or their liabilities individually. The ex-
ecution upon such judgment shall direct the collection of the sum for
which it may be issued, of the property oi such company liable to be
Ill
levied upon by virtue thereof; and in case such property sufficient to
satisfy the same, cannot be found in the county of the officer to whom
the same shall be directed, that the deficiency, or so much thereof as the
stockholders who shall be defendants in such judgment shall be liable
to pay, shall be collected of the property of such stockholders respective-
ly. 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 verdict or judgment in favor of any such stockholder, shall
prevent the plaintiff in such action from proceeding therein against the
company alone, or against it, 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 li-
able 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 ; but it shall not be ne-
cessary that such dissolution shall have been declared by any judicial
decree, sentence or determination ; and in such suit there may be a ver-
dict 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 such defendant who shall be liable
as aforesaid.
47. Sections seven, eight, nine, eleven, twelve, thirteen, fourteen, six-
teen, twenty-one, twenty-two, twenty-three, twenty-four, thirty, thirty-
five, thirty-six, forty-one, forty-two, forty-four, forty -five, forty-six, forty-
seven, forty-eight, forty-nine, fitly, fifty-one and fifty-two of the first
title of the eighteenth chapter of the [third*] part of the Revised Sta-
tute.3, shall apply to ths companies organized by virtue of this act, and
all inspectors and other officers named therein and to all the officers and
roads of such companies, so far as the same can be so applied and arc
consistent with this act.
43. So much of any such road and of the toll-houses, gates and other
appurtenances thereof constructed by virtue of this act, as shall be within
any town, city or village shall be liable to taxation in such town, city or
village as real estate.
49. Every company incorporated under this act shall cease to be a
body incorporate :
1. If within two y?ars from th3 filing of their articles of association,
* Amended by chap. 237 of laws of 1847, so as to read " FIRST" instead of
'THIRD," and the only eflfsct of cliap. 2b7, is to correct this orror.
112
they shall not have commenced the construction of their road, and ac-
tually expended thereon at least ten per cent, of the capital stock of such
company, and
2. It within five years from such filing of the articles of association,
such road shall not be completed according to the provisions of this act-
50. All companies formed under this act shall at all times be subject
to visitation and examination by the legislature or by ,a committee ap-
pointed by either house thereof, or by any agent or officer in pursuance
of law; and the courts of this state shall have the same jurisdiction
over such corporations and their officers as those created by special act. c .
51. The legislature may at any time alter, amend or repeal this act, or
may annul or repeal any corporation formed or created under this act.
52. This act shall take effect immediately.
CHAPTER 398 LAWS OF 1847.
AN ACT in relation to Plank Road and Turnpike Companies.
The People of tfie State of New York, represented in Senate and As-
sembly, do enact as follows :
1. Any company formed under the provisions of chapter 210 of the
laws of 1847, entitled " An act to provide for the incorporation of com-
panies to construct plank roads and companies to construct turnpike
roads," may procure by purchase or gift from the owners thereof, any
lands necessary for the construction of so much of its contemplated rof.d
as shall be intended to be constructed in any county. And may also
procure by agreement from the officers named in the 26th section of the
said chapter, the right to take and use any part of any public highway
necessary for the construction of so much of said road as shall be in-
tended to be constructed in such county; and when any such company
shall have so procured all the lands necessary to be used for the con-
struction of its road in such county, and the right to take and use such
parts of the public highways as shall be necessary for that purpose, such
company may construct so much of its road as shall be intended 10 be
constructed in such county, without making the application mentioned
in the fourth section of the said chapter.
2. Before proceeding to construct such part of its road as provided in
the first section of this act, such company shall cause an accurate survey
of such part to be made by a practical surveyor, signed by its president
and secretary, acknowledged bv them as conveyances of real estate are
required to bi- acknowledged in order to be recorded, and recorded in the
clerk's office of such county ; and it shall also, before proceeding to con-
struct such part of its road, procure in manner provided by the said
chapter, from the board of Supervisors of every other county, if any
there be, in which any portion of it is intended to be constructed, author-
113
ity to construct the same through such other county ; but in such case,
the commissioners appointed to survey and lay out the road of such
company, shall not be required to survey and lay out that portion of it
intended to be constructed within the county, in which such company
shall procure the lands, and the right to take and use the public high-
ways necessary for its construction as aforesaid.
3. When any such company, by virtue of the provisions of this act,
shall have procured the lands and the right to take and use the parts of
any public highways necessary to construct its road in any county, and
shall have constructed the same without making the application men-
tioned in the fourth section of the said chapter, it shall possess the same
rights, powers and privileges and be subject to the same duties and
liabilities in respect to its road and to the part thereof so constructed, as
if such application had been made and all the proceedings of such com-
pany had been had pursuant to the provisions of the said chapter.
4. Nothing in this act contained, shall be deemed or construed to au-
thorize the laying out or constructing of any road in the cases specified
in section nine of chapter 210 of the laws of 1847, nor to authorize the
bridging or obstructing of any stream navigable by vessels or steam-
boats.
CHAPTER 360 LAWS OF 1848.
AI>r 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.
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