
    Townsend v. Blewett.
    It seems that proof of the legal existence of a franchise and possession is sufficient to enable a party to maintain an action for its disturbance.
    In an action on the case for the disturbance of the franchise of a bridge, the plaintiff adduced in proof the act of the legislature, showing its existence. He also produced a deed of the freehold upon which the bridge was situated, and proved possession of the bridge; held sufficient evidence of title to maintain the suit.
    When the bill of exceptions states that evidence was introduced upon the trial, without setting it out, so far as relates to that evidence, the presumption will be in favor of the judgment.
    To constitute error in ruling out testimony, its relevancy must appear.
    It is not error to refuse cumulative testimony.
    In case for the diversion of travel from the plaintiff’s toll bridge, it was held the plaintiff in proof of damages, might give evidence of the number of persons that had crossed the rival bridge at different times. The rule of law in relation to repeated acts of trespass, has no application to an action on the case.
    Á free bridge cannot be erected, without authority, so near a toll bridge authorized by law, as to interfere with the franchise of the latter.
    IN ERROR from the circuit court of Lowndes county.
    Action, trespass on the case.
    This cause was tried before the Hon. Stephen Adams, at the November term of said court, 1839,
    Thomas Blewett, the plaintiff below, commenced his action of trespass on the case against Thomas Townsend, to recover damages for a disturbance of his franchise in a toll bridge across the Luxapolila river, where the road crosses said river from the town of Columbus, leading to Pickens county, in the state of Alabama.
    The legislature of the state of Mississippi by an act passed January, 1829, granted to Ira N. Nash, his heirs or assigns, the exclusive right to keep a toll bridge over said river at said point for the term of ten years. The act further provided, that it should not be lawful for any person, or persons, to erect a bridge, or keep a ferry boat on said river within two miles and one half of said toil bridge
    It was also enacted, that the rates on said bridge to be charged by said Nash, his heirs and assigns, should from time to time be fixed by the road commissioners of said county, or by such court as by law should have the power of regulating the county police, not to exceed certain prescribed rates. It further appeared that these rates were duly fixed by the competent authority.
    Nash conveyed the land on which this bridge was erected to one Jackson, and Jackson to Blewett, by a fee simple deed," with all the appurtenances, &c. thereunto belongingIt appeared that Nash had a toll bridge over said river, and that Blewett subsequently took it down, and erected a new one in its place, and received tolls.
    In February, 1837, the defendant below, Townsend, erected a rival bridge within one mile of Blewett’s bridge, and opened a road on each side of the river and diverted the travel from the established bridge. This action was brought to recover the amount of damages sustained by the plaintiff below by the erection of the last mentioned bridge.
    On the trial a witness was introduced by the plaintiff to prove his continued possession of the bridge and enjoyment of the tolls since the 19th of September, 1837: the bill of exceptions stated that this evidence was objected to, on the ground that no written evidence had been introduced to prove plaintiff’s title or possession, with the exception of the act of the legislature chartering the bridge. Objection overruled, and exceptions taken.
    The defendant offered in evidence a receipt by the plaintiff to show that the bridge had been taken down, and a ferry established in its place: this receipt was dated in November, 1836. The bill of exceptions recited that, the plaintiff had previously proved that he had suffered the bridge to go down from before the date of the suit until September, 1837, and put a ferry in its place. The court rejected the receipt, and instructed the jury that if they believed from the evidence the bridge was abandoned by the plaintiff and a ferry used, the franchise was thereby lost; but if they believed the bridge was not abandoned, but taken away to erect a new one in its place, this being done in a reasonable time, it would not be a forfeiture of the franchise, but would suspend the right during such necessary repairs.
    Bill of exceptions stated that defendant moved the court to exclude from the jury the evidence offered by plaintiff to prove damages and injury sustained by plaintiff by means of defendant’s rival bridge having diverted the custom and traveling from plaintiff’s toll bridge, on the seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, eighteenth and nineteenth days of September, 1837. None of this evidence was stated by the bill of exceptions. The court decided that only one trespass by the erection of the bridge could be given in evidence under the declaration, but the plaintiff might prove consequential damages accruing upon the original trespass upon divers days. The original declaration which was demurred to, alledged the time of the diversion of travel by the erection of the rival bridge on the “ first day of February, 1837, and on divers other days between that time and the commencement of this suit,” which was on the 19th of September, 1837. This declaration was amended for other defects, and the amended declaration alledged the erection of the rival bridge on the 1st day of February, 1837, and that the defendant “ did thereby then and there on the day and year last aforesaid,” divert the travel, specifying it.
    The deed of conveyance for the land and bridge by Nash to plaintiff was not set out, but was recited to be a fee simple deed of the land on which the bridge was situated, with the appurtenances, &c. The original declaration alledged the deed from Nash to be a conveyance of the land, “with all the rights, members and appurtenances, together with the franchise and all the exclusive privileges.”
    Seventeen instructions were asked for by the defendant, and refused by the court. They related principally to matters already stated, and were requests to charge the jury that mere possession was not sufficient to support the action; that written evidence of title to the bridge must be shown; that the plaintiff, under the declaration, could not give evidence of trespasses on different days, &c.
    Verdict for plaintiff below. A writ of error to this court.
    Evans, for plaintiff in error.
    The right to keep a toll bridge or ferry is an incorporated here-ditament, and is termed a franchise. 2 Black. Com. 37 and 38; 3 Kent’s Com. '403,458, 3d ed. Is a tenement, 2 Black. 17; 3 Black. 401.
    It can only pass by deed, 4 J. R. 81; 3 Kent’s Com. 402; 2 Black. Com. 317; 7 Pickering, 451; 2 Thos. Coke, 356, 334,402, note R.; 2 Bacon’s Ab. title, Grant E.; 2 Law Library, 174-12 -13; 1 Chitty’s General Practice, 203; Wool, on Ways, 218-16. When the term is for more than one year, it must be by deed. — ■ Rev. Code of Miss. 453, sec. 1. An incorporeal hereditament exists merely in idea, in abstract contemplation, 2 Black. Com. 19, is the object of neither the sight nor the touch. It cannot be delivered from man to man by any visible bodily transfer, nor can corporeal possession be had of it. 2 Black. Com. 21; 3 Kent’s Com. 402. It is not tangible or visible, nor is it the object of the senses, but exists only in legal contemplation; is incapable of actual possession, and passes by the mere deed of grant, and is therefore said to be in grant. 1 Chitty’s General Practice, 203; Tomlin’s Law Dictionary, title Hereditaments, 2 vol. 86.
    There are two ways of claiming rights of this kind: by grant and by prescription, which latter is supposed to bo founded in grant. 14 Mass. Rep. 49; 10 Pick. 138; 15 J. R. 447; 10 Mass. 183; 12 Mass. 157; 3 Pick. 480.
    To give to the enjoyment of an incorporeal hereditament the character of prescriptive evidence of title, it must be shown that the enjoyment has continued for upwards of twenty years. Roscoe’s Civil Ev. 265.
    If a way in gross be disturbed, the deed of ■ grant should be brought into court; or if claimed by prescription, it should be established by the usual testimony of long usage. Woolrych on Ways, 283,288.
    In an action on the case for a nuisance, plaintiff must establish his title to the right affected; if the injury be to real property corporeal at the suit of a party in possession, he need only prove his possession; if the property injured be incorporeal, then plaintiff must prove his title to it by express proof. 2 Saunders’ PL and Ev. 688.
    In an action for a nuisance to plaintiff’s real property, he must prove his possession; or if for a nuisance to an incorporeal light, he must prove his title to it. 2 Starkie’s Ev. 588, (ed. 1837,) and 285.
    Though it be not necessary now in possessory actions to lay a title in the declaration by grant or prescription, as used to be formerly, yet the title or consideration must be proved at the trial to entitle plaintiff to recover; and perhaps the reason why it is held not necessary to lay any consideration or title in the declaration is, that it is matter of evidence only. 2 Saund. R. 114, note.
    Plaintiff below showed in his declaration a grant of the franchise by the legislature to Ira Nash, by act passed in 1829: to have shown himself entitled to maintain the action for an injury done to the franchise, he ought to have proved his title to it, and this he could only do by proving that the right granted to Nash passed from Nash to him, the plaintiff below. And as this right could pass only by deed in writing, he ought to have exhibited the deed, and thereby prove himself to be the assignee of Nash. Hence the court erred in permitting the plaintiff below to prove title by parol evidence, and in refusing to give the 2d, 3d, 4th and 5th charges.
    The court below erred in rejecting the receipt given by plaintiff below to defendant, for twelve months’ ferriage. This receipt was admissible as evidence of an abandonment of the franchise by Blewett, if he were ever possessed of it.
    The court also erred in charging the jury, that if plaintiff below took down the old bridge to erect a new one in its place, and did erect a new one in a reasonable time, that it would suspend the franchise, but not amount to a forfeiture thereof. The suspension of a franchise for a moment is the destruction, the complete annihilation of it. See Extinguishment Defined, 4 McCord, 96, 104, 106; 2 Black. Com. 177; 7 Pick. 452.
    The owner of a ferry cannot suffer it to go down and build a bridge in its stead, without a grant. 1 Salk. 12; 2 Law Library, 156, 173; 7 Pick. 452, 492; 3 Modern Rep. 294. Two inconsistent rights cannot exist together, and the erection of a new and inconsistent right by the party himself, is an extinguishment of the former one. 4 Mc’Cord, 104; 7 Pick. Rep. 452. Therefore, the establishing of a ferry in the place of the bridge which Blew-ett suffered to go down, was an extinguishment of his bridge' franchise. And the receipt for, twelve months’ ferriage, offered as evidence and' rejected by the court, was good proof both of the establishment of the ferry and of the intention, of Blewett to abandon thefrañchise,'by taking'down the bridge.
    A ferry does not pass by a conveyance of thé adjacent soil, and a sale of the fee simple of .the soil does not carry with it any right whatever in the chartered interest. See 1 Bailey’s S. C. Rep. 472.
    There is no necessary connection between the land ■ and the ferry or a toll bridge. The franchise is personal in its character, and is neither appendant nor appurtenant to the land. It may be granted to a stranger or one having no interest in' the land. See Rev. Code, Miss. 361, sec. 43. Laws of Miss. 393, sec. 30, 39, 40. If then the-land can.belong to one person and the franchise to another, then the latter can 'in no wise be said, to be appendant or appurtenant to the former. The true distinction is this, that when a franchise is appendant or appurtenant.to, land, it passes by a- conveyance of the land under the general words hereditaments and appurtenances, otherwise it does not. For instance, common in gross or at large is such as-is neither appem dant nor appurtenant to land, but is ánnexed to a man’s .person, being granted to him and his heirs by deed ; or it may be claimed by* prescription. " This is a separate inheritance entirely distinct from any landed property, and may bé vested in one who has not- a foot of land in the manor. '■ 2 Black. Com. 34. 1 Thos. Coke, 266. 1 Tomlin’s Law Dictionary, title 'Common, pi 366. The right of way in gross is a-mere personal right; b.ut when a right-of way is appendant or annexed-to an estate, it may pass by an assignment when the land is sold to which it is appendant. 3 Kent’s Com. 419. • But the right of way ‘in gross must pass by deed: By a deed of land described as such, an easement not naturally and necessarily belonging to the premises will not pass. 6 Connecticut-Rep. 289. Button’s Digest, 82. The franchise granted to Ira Nash, is a franchise in gross, merely personal, and is attached to the pérson of Nash. -By the act of the legislature, it is granted to him, his heirs and assigns, and no mention of land is made ;• the- franchise to Nash, therefore, is neither appendant nor appurtenant to, land, but wholly personal or in gross. '
    The right to charge toll granted to Nash is a franchise in gross, attached to the person of Nash, his heirs or assigns, incapable of visible tangible possession, (such as was permitted by the court to be proved,) lying in grant only, and passing only by deed in writing.
    Harrison and Hughes on the same side.
    Howard, for defendant.
    1st. It' appears from the second bilL of exceptions that Ira N. Nash conveyed the land on both sides of the stream, upon which this bridge was situated and by which the road led, by a fee simple title, with all the appurtenances, &c. This deed was a good conveyance of all the title, interest, and privileges which the grantor had to the land, pf which the toll bridge was one. It is a well- settled rule, that the right of way or other easement appurtenant to the land, will pass by a grant of the land without any mention being made of the easement, or the appurtenances, Co. Lit. 307 a. 121 b. Thistle’s case 10, C. 64 a. 2 Black. 22- 10 Mass. 183. 12 Mass. 157. 3 Kent, 338. 6 Mod. Rep. 10 Pic. Kent v. Wait, 141. In this last cited case, all the conveyances did not contain the clause cum pertinentis, yet the easement or right of way was held to have been granted with the land to-which it was appurtenant.
    The toll bridge was not less an easement, because of its incorporation by the legislature. « Easement, as a general term, may include rights of way and of common and divers kinds of purchases.” 2 Woodeson, 60. The public has only a right of way. The owners of land on each side of a road have the exclusive right of the soil, subject only to the public right of way, 3 Kent, 433 — 428.
    The deed from Nash to Blewett conveyed his fee in the road and all his right belonging to it, save the necessary right of way in the public. Whatever beneficial interest Nash possessed in the way of bridge was a mere appurtenance to the freehold, and passed with it to the grantee. Proof of possession and the legal existence of the franchise will enable the plaintiff to maintain an action for its disturbance against a stranger. The parol proof was admitted to show that the defendant in error had possession of the toll bridge, and was in the enjoyment of his rights under the charter. The bill of exceptions does not show with certainty the order in which the evidence was introduced, but the fair inference from the record is, that the deed was first introduced. If such were the facts, the parol testimony was regular beyond a doubt, as showing possession of the franchise to have accompanied the title. The presumption will be, the evidence on the trial was regularly adduced, in absence of a showing to the contrary.
    
      2d. It is assigned for error that the court excluded from the jury, a receipt given by the plaintiff below to the defendant for a year’s ferriage, and also, that the court erred in charging the jury that if they believed that the bridge was abandoned by the plaintiff and a ferry used, the franchise was thereby lost; but, if they believed the bridge was not abandoned, but taken away to erect a new one in its place, this being done in a reasonable time, it would not be a forfeiture of the franchise, but would suspend the right during such necessary repairs.
    The record contains no evidence other than inference, that the bridge was ever taken down, nor does it appear that the plaintiff had not a right to use both a bridge and a ferry. There was no foundation for the introduction of this certificate. The naked fact that the party had in one instance taken ferriage, was not admissible to show that the bridge had been abandoned. It does not even appear that the ferry and bridge were at the same place, nor that the bridge was not in use at the time the ferriage receipt was given.
    The record does not show a state of facts to which this charge was pertinent, but if all the facts were proved which the charge would suggest, there can be no possible objection to it. If taken to its fullest extent, the charge is not error.
    It has been said that the non-user of a right of way must continue for at least ten or twenty years to work a forfeiture. White v. Crawford, 10 Mass. Rep. 194. The grant of the toll bridge was for only ten years; the mere omission of a corporation to exercise its powers, does not in itself work a forfeiture. Angelí & A. on Corporations, 510. In this case the corporation manifested no intention to abandon the franchise, because, even if it sufficiently appears that the bridge was taken down, it is shown that it was only for repairs. A corporation is not dissolved by a temporary suspension of its business. Ib. 509.
    The question of forfeiture could not be inquired into collaterally, as was attempted. The franchise could only be resumed by the legislature, or by regular proceedings in a court of justice, when the owners of the franchise would have a right to answer and be heard in defence of the privilege, and the government alone could institute such proceedings. Ib. 510. For this reason therefore, the certificate was properly ruled out.
    The fourth error assigned is, that the plaintiff was permitted to give evidence of divers trespasses on divers days, before and after the days laid in the declaration. The trespass is laid with a con-tinuando in the declaration from the erection of the bridge on the first day of February 1837, to the time of the commencement of the suit, which was on the 19th of September, 1837, and covers all the different trespasses of which evidence was given.
    When the injury, as in this case, is of a kind that can be continued without intermission from time to time, the plaintiff may declare with a continuando and the whole is considered one trespass. Such a declaration is considered as containing a distinct count for each trespass. 3 Starkie on Evid. 1441. 16 Mass Rep. 470. Besides, this action was Case and not Trespass, and the rule insisted on by plaintiff in error does not apply.
    The whole narration constitutes the declaration.. The counts of the first declaration, so far as well made, are as much a part of the proceedings, as those contained in the amended declaration, and evidence may be legally offered thereon. If the evidence could be legally offered on any or either of the counts in the declaration, the verdict will be sustained.
    This court will not undertake to decide upon the competency of evidence, unless it is made a part of the record by the bill of exceptions. Any other rule would be liable to great abuse and lead to a loose practice. In this case, it is said that the fee simple deed, which was offered in evidence, conveying the land on which this bridge was located, with all the appurtenances, &c. is not a good title. Yet how can this court say so, unless the deed is made a part of the proceedings by the bill of exceptions? This court cannot judge of the sufficiency of evidence, unless that evidence is spread upon the record. The mere declaration of the bill of exceptions, as to what was the character of the evidence, cannot be received. • In absence of a showing that" the evidence on the trial was illegal, the presumption must be in favor of the correctness of the verdict and judgment below.
    Nine' instructions were asked by the, defendants below, and. all refused by the court, which is assigned as error. It will be perceived that most of these instructions were mere abstractions, and not called for by any proof in the cause. Others were illegal, and it has been determined by this court, that where instructions are partly correct-and in , part erroneous, the court Is not bound to separate the charge, but may refuse it altogether.
    The regulation of highways, ferries and bridges is a sovereign power, and can only be exercised by the government. It exists for the public good, arid cannot be infringed upon by the citizen. No private citizen can establish a bridge, ferry, or road in such a manner as to injure the public right of Way or impair the power of the sovereign to secure the public good and welfare in this respect. “A ferry is'a franchise which cannot be set up without license. If it be erected by license, another cannot erect a ferry to the nuisance of it, though it be upon his own soil.-’-’ Com. Dig. tit. Piscary (B.) See also, Action on the Case for Nuisance. 1 Nott & McCord, 387. 3.331ack. Com. 219.
    It is a well established principle, that - a rival- bridge} or ferry, cannot be established so near to the- other, as materially to affect the franchise, by taking away its custom. ■ The case ,of the New-burg Turnpike Company v. Miller, 5 John. Chan. Rep. 101, is a, case in point. The same doctrine is recognized in Ogden v. Gibbons, 4 Ib: 1¿0.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendant in error brought this action, to recover damages for the infringement or disturbance of a right to keep a toll bridge, which, had been originally granted by the legislature to, Ira N. Nash, under whom the defendant in- error claims. The tortious act complained of was committed by the plaintiff in error, by erecting another bridge over the same stream within the distance prohibited by the legislature, by which custom was diverted from the bridge of the defendant'in error. ■'

■ Several questions are presented by bills of exceptions taken at the trial. By the first, it appears that a witness' was introduced, who proved, that Blewett had possession of the toll bridge and received tolls at the time laid in the declaration. ' And by this bill of exceptions, it also appears that no other than parol evidence was offered to. prove the plaintiff’s right, except the act of the legislature granting to Nash the right to keep a bridge. This testimony was objected to as insufficient; und it is now insisted that a grant was necessary fo pass the right from Nash to Blewett, and that such grant should have' been introduced on the trial to enable the plaintiff to sustain his action.

Blewett,it seems, proved that the bridge was authorized by act of the legislature. The right therefore originated and existed by grant. He also proved possession in himself. And this, it seems on authority, is sufficient to enable the plaintiff to sustain an action for the disturbance of a franchise which is shown to have a legal existence. This point was expressly so decided in the case of Peter v. Kendal, 6 Barn, and Cress. 703; and this case is cited with approbation, as establishing the rule, in the 2d volume of Saunders on Pleading and Evidence, 68S. It does not, however? standalone; The same question, it seems, was involved in the case of Trotter v. Harris, cited in 3 Harrison’s Index, 2173, and was decided .in 'the same way. We have not seen a full report of the case; but the editor’s note is full-to the point.' The question, in both of these cases, arose in relation to ferries. It is not easy to distinguish between the right to keep a ferry and the right to keep a bridge! These' decisions are, therefore, precedents in point. . ' ■

But in addition to this, it appears by the second bill’of exceptions, that the plaintiff also ■introduced, in evidence a deed in fee simple to himself, from Nash, for the land on which the bridge stands, with the appurtenances. Although this evidence is not mentioned in the'first bill of exceptions, it is nevertheless a part of the case' before us, so far as to show that a deed was introduced. On the sufficiency or extent of. the deed, we cannot determine, as it is not before us. It is stated to have been a deed for the land and appurtenances,- and 'we must therefore consider of it as a sufficient deed. The grant to Nash was not personal, or in gross merely; but it was a grant authorizing him to erect a bridge at a particular- place on a certain highway; and whether strictly appurtenant to the freehold or not, it is at least so far appurtenant as to be confined to the place designated by the legislature. Public convenience was the consideration for the grant.

In this it differs from the cases cited by the counsel for defendant in error. They were mere easements, or private rights, which passed by deed, under, the title “appurtenances,” unless there was an exception in the grant.

Although ’there is force in the' position that Nash’s right passed by the deed, yet we do not. deem it necessary to go thus far. This is an action- on the case, which does not involve strength of title-merely. The plaintiff below has’ shown .thelegal existence of the right, for the disturbance of which he claims damages. He has also shown a deed for the freehold> and his own possession. And this, we think, is'sufficient evidence of title to entitle him to his action.

By the second bill of exceptions, it appears that the, defendant offered a receipt for a year’s ferriage over the same stream, given by the pláintiff. This was ruled out. It ’is probable that this receipt was .offered for the purpose of proving that the bridge had been abandoned, and a ferry established. This bill of exceptions is so drawn as not to show the object with certainty; and to constitute, error in ruling out testimony, its relevancy must appear. If it was designed as we have supposed, then it was but (cumulative, and the’ defendant had the benefit of a witness’ testimony to the same point.. The witness proved that before the date of the receipt, and until the 7th of September, the plaintiff had-permitted the bridge to go down, and put a ferry in its stead. The receipt itself was certainly not stronger than this testimony. And on this showing, the court charged the jury, that if they believed from the evidence the bridge was abandoned, and a ferry substituted, the franchise -was thereby lostbut if the bridge was merely taken away to erect a new one, then the plaintiff’s right to recover was not impaired. The charge of the court was unobjectionable. And it is impossible to conceive how the receipt could have made the case stronger, unconnected as it is with any other testimony on the part of the defendant; and if he had other testimony to aid the receipt, it should .have been shown by the bill of exceptions. We have nothing before us on which it can be fairly insisted that the franchise was abandoned, except the above mentioned facts; and they seem to have been considered both by the court and jury. Any opinion on that subject is uncalled for by the state of the case.

The third bill of exceptions contains an objection to any evidence being introduced to show repeated acts of trespass.” It would appear that evidence had been introduced to prove the diversion of custom from - the plaintiff’s bridge on several different days; and the court held that this might be done in aggravation of the damages. This action is case, not trespass; and.the rule of law in relation to repeated acts of trespass has no application. The plaintiff’s right was violated by the erection of the bridge within the distance prohibited, by which custom was drawn off. It was altogether competent to show the extent of the injury, by showing how many persons had crossed at the rival bridge. The declaration does not complain of a particular time or .act of diversion; and it was competent for the plaintiff to prove his damage by the amount of .custom which had been drawn off.

- - The last bill of exceptions contains nine points, on which the court was requested to charge the jury by the defendant’s counsel. Most of them are covered by the remarks already made, as they are the same questions which were raised in the preceding exceptions. Such as are not noticed are mere abstract questions of law, having no bearing on the cáse as exhibited by the record.

The judgment mustbe affirmed.

Judge TueNeb. concurred.

Judge Tkottee having been concerned as counsel for the defendant in error, gave no opinion.  