Gilchrist, J.
The case finds that the toll-gatherer was directed to let the defendant pass free, on account of a •claim which he made for the use of the land. His claim was agreed to bo referred, and if any thing was awarded to the defendant on it, it should be deducted from his toll, and he should pay the balance. But no reference was had, and no demand made on him until this suit.
It is very clear, taking these facts together, that the defendant was to pass free until there was in some way a settlement of his claim. He was not to pay toll, on account of his claim, and that claim was to be referred. How long did this agreement last ? Certainly until the adverse party was notified to the contrary. The defendant might perhaps say that although the agreement to refer was revoked, still he was to pass free on account of his claim. That however is not the plain meaning of the facts stated, considering them together. A revocation of the agreement to refer, would revoke the permission to pass free; and until something of this kind was done, the defendant could not be compelled to pay for using the bridge, at a time when he was using it under an agreement that he should not pay. The instruction on that head was therefore correct.
The charter provides that when the toll-gatherer is absent, the gate shall be left open. In such case then the law required the gate to be open. This was for some purpose. It can hardly be supposed that every man who passed the bridge when no one was present to demand and receive his toll, was meant to be subjected to an action for an omission of that duty which he had every reason to suppose was not intended to be required of him.
If there were no gate and no toll-gatherer, and all persons were permitted to pass free of all demand for toll, this would raise a presumption, in the absence of any provision in the charter, that the corporation had no intention of taking toll. The case would be somewhat analogous to that of a dedication of land for a highway. It would be a holding out to the world in every way in which the corporation could act, short of an express per mission, that all persons might pass without payment. ■And it would often, probably, induce persons who might not otherwise pass the bridge, to travel over it. This would not be the case of an express permission to pass, as of an assent that he might pass, given under a misapprehension of the rights of the party, as in Chesley v. Smith, 1 N. H. 20. That case stands well enough without decision in this.
The duty of the toll-gatherer is to open the gate and to receive the tolls. Perhaps the matter would have been well enough if there had been any person there to demand and receive the tolls. Perhaps a gate might exist substantially, if the toll-gatherer were there. It is erected for the convenience of the corporation. If the defendant cuts it down, that does not hinder an agent from being placed there. It is very common for a gate to be left open while the toll-gatherer is there. That is no permission to pass free of toll. And the statute does not provide for such a case, but for the more important one of the absence of the toll-gatherer.
We think therefore that it was properly left to the jury to inquire upon the evidence, whether there was a general license for all persons, including the defendant, to pass the bridge without the condition of paying toll.
The consequence is there must be
Judgment on the verdict.