
    
      Trent and Others v. The Cartersville Bridge Company.
    February, 1841,
    Richmond.
    Ferries — Non-User—Right to Prevent Others from Invading Franchise. — If a public ferry has been disused for more than three years, though the franchise of the ferry owner has not been declared forfeited on quo warranto or other like proceeding, he is not entitled to the aid of a court of equity, to prevent others from invading the franchise, which he has abandoned by such non-user under the statute, 2 Rev. Code, ch. 237, § 23, 24.
    Same — Same — Same.—And, it seems, he cannot maintain an action at law to vindicate such a franchise so abandoned by non-user.
    Same — Right of Owner to Object to Private Use of Stream. — The owner of a public ferry cannot maintain any action against persons, who use their own boats for passage or transportation of themselves, their families and property only, not for the accommodation of the public generally.
    Bridge Company — Private Ferry — Right of Company to Object. — A charter is granted, to an incorporated company to build a toll bridge across a river, over which there is at the time an ancient ferry nearby; but no exclusive privilege is granted to the bridge company for the transportation of persons or property; and other persons, of their own will, establish a ferry at or near the same place, for the use of themselves ouly, not for the use of the public generally : liKbi), the bridge company have no just cause of complaint against such persons establishing such ferry for such purpose, though it may reduce the profits of the bridge.
    Ferries — invasion of Rights — Case at Bar — Quajre.— Whether the establishment of a free ferry, or of any ferry without authority of law, for all comers and goers, at or near a public ferry established by authority of law, is an invasion of the rights of the owner of the public ferry for which an action for damages will lie, under the statute law of Virginia ? or whether the owner of the public ferry can recover more than the penalty of 820 given by the statute ?
    By an act of assembly, passed in March 1819. a company was incorporated by the name of The Cartersville Bridge Company, and privileges were given to the company to build a bridge across James River at Cartersville, and to demand and receive certain tolls for passage and transportation over the same. The company was formed, and the bridge built, according to the charter.
    *There was an ancient public ferry across the river at Cartersville, which was still existing at the time the act of incorporation" of the bridge company was passed, and of which Randolph Harrison was then the owner. If the building of the bridge might establish a competition with the ferry that might impair or wholly destroy its profits, yet the charter of the bridge company did not directly take away or touch the rights of the ferry owner; and for some time (though not long) after the bridge was built, he kept up the ferry.
    In 1836, The Cartersville Bridge Company exhibited a bill in chancery against John Trent and eight others, in the circuit superior court of Cumberland, in which, after setting forth their charter, the erection of the bridge in pursuance thereof, and the existence of Harrison’s public ferry, they allege, that after the bridge was completed, some of the members of the company purchased Harrison’s right of ferry from him, and then made a lease thereof to the company, whereby they became entitled to the ferry during the term of the lease which was not yet expired. That as the bridge furnished a much more convenient mode of passage and transportation than the ferry, the latter, after the purchase and lease thereof to the company, fell into disuse, though a ferry boat was constantly kept near by, in readiness to be brought into use, if and when it should be required for the accommodation of the public; but it had not been required, (except at intervals when the bridge was out of repair,) till the (then) present year, when a part of the bridge having* been destro3'ed by fire, the company put the ferry and ferry boat into use for passage and transportation while thejT were repairing their bridge. That early in the (then) present year the defendants, most of whom resided near the bridge or had frequent occasion to cross the river at that point, without having any interest in the ferry, or any pretence of right to have and use a ferry at or near the place, and without owning the lands *on either shore of the river at the ferry landings, combined together, and put a boat on the line of the ferry, and had ever since been using the same as a ferry boat there, for the transportation of themselves, their servants, horses and carriages, and of such other persons and things as they have thought proper to transport. That the company were not informed what provision, rules or regulations the defendants had made for the support of their ferry ; or whether the expenses thereof were defrayed by contribution among themselves, or by tolls exacted, or moneys taken under the name of gratuities, from persons using the boat; but in whatever way this unauthorized ferry was maintained, it had produced, and was producing, great and increasing detriment to the bridge company by the subtraction of their lawful tolls and profits. That the company was advised that Harrison’s ferry was a subsisting franchise, vested in them during the term of their lease, the non-user of which, under the circumstances, was no ground of forfeiture, and if it were, the forfeiture of the franchise could only be accomplished by the judgment of a court of competent jurisdiction ; and even if the franchise had been forfeited, it had been thereby reinvested in the public, and could not be exercised except under public authority duly conferred: that if Harrison’s ferry was a subsisting franchise, the conduct of the defendants was a plain encroachment upon the rights of the bridge company as the owners thereof for the term of their lease; and if the ferry was forfeited, the conduct of the defendants was an assumption of public rights without authority, and was a fraud upon the rights of the bridge company; so that in every view, the combination and conduct of the defendants complained of, was not less a violation of the lawful rights and privileges of the company than it was detrimental to their interests. That, in fact, tolls and profits had been and were being withdrawn, by the combination x'and conduct of the defendants, from the bridge company, to such an amount, as to render it certain, that if the combination of the defendants was not suppressed, the bridge, a highly valua'ble and useful improvement, in which the public was interested, must be abandoned. That the sole motive and design of the defendants in combining to run their ferry boat, was to evade payment of tolls to the bridge company. And that the conduct of the defendants could not be justified or excused by any pretence of misconduct or neglect of the bridge company in the performance of their duties, or any failure, on their part, to furnish at all times prompt and safe passage and transportation across the river, or of superior convenience to the defendants or others in the use of the ferry boat they had put there, over the means and transportation furnished by the company’s bridge and ferry. Therefore, the bill prayed an injunction to restrain the defendants from keeping or using, or causing to be kept or used, the ferry boat they were then using, or any other boat, for the transportation of persons or property across James River at Cartersville, either for toll or free of toll; and general relief.
    The injunction was awarded.
    The defendants, in their answer, stated, that they had understood, that certain individuals had, within some six or seven years past, purchased Harrison’s ferry from the former proprietor thereof, but that they had no knowledge of the lease of that ferry by the purchasers to The Cartersville Bridge Company mentioned in the bill, and called for proof thereof, and of the alleged right of the bridge company in and to the same. That Harrison’s ferry had been wholly disused for more than three (and indeed for five) years; and so that ferry, and the ferry right, had been discontinued and forfeited. That it was true the bridge company had built a bridge across James River not far from Harrison’s ferry, and had demanded and received tolls for passage and transportation over their bridge; but a competition was for some time kept up between the bridge company and the proprietor of the ferry, to the great convenience and accommodation of all who had to cross the river at Carters-ville. That no boat having been kept at the ferry for five years, until recently when the bridge was partially destroyed by fire, the public had been forced during all that time to use the bridge for crossing the river, whether they chose or not, or to adopt some private mode of passage and transportation. That the citizens of the neighbourhood reluctantly acquiesced in this state of things, so long as the bridge company afforded them the accommodation they had always before enjoyed, in the payment of tolls for crossing the river; but the company, during the preceding winter, had determined that no one should cross the river upon their bridge, without paying the tolls in cash at the time of crossing; an exaction most vexatious and oppressive upon those who were obliged to use the bridge weekly and daily in crossing and re-crossing. That the defendants, rather than submit to a regulation so harsh and inconvenient, had resolved to use their own private means of transportation across the river: they had established and kept a ferry boat, for their own use only, from one of the ancient public landings to the other on both sides of the river, as they were advised they had a legal right to do: and though others besides themselves might occasionally have used their boat for passage and transportation, they had never asked or received from them any tolls or reward, but on the contrary had expressly forbidden that any should be exacted. That at the time they established their ferry boat, there was no ferrj' boat kept at or near the ferry landing on the river; and none had been kept there, nor was any person in actual possession of the ferry, nor had any person been in possession thereof, for more than three years. And that the defendants claimed the right of crossing James River, which was a public highway, when and where, and in any boat or other vessel of their own, as their own convenience, or their pleasure, should dictate, and to laud at any public landing on the river which was free for the use of all citizens.
    There was no proof, that the bridge and Harrison’s ferry were designed and calculated to accommodate the same travel and transportation It was only proved, that the public landings which had been used for Harrison’s ferry, and the abutments of the bridge, on both sides of the river, were about three hundred yards apart.
    There was no competent evidence, that Harrison’s ferry had been purchased from the former proprietor, or that it had been leased to the bridge company, as alleged in the bill; though enough appeared to render it probable, that the allegations of the bill as to those particulars were true.
    It was proved, that Harrison’s ferry ceased to be used in 1833, and the ferry boat before used there was then transported by the bridge company, to a mill pond about a mile and a half from the ferry, where it could be better preserved, ready for occasional use, than in the river or at the ferr}' landing; and that after the injury to the bridge by fire early in 1836, the boat was brought back to the river, repaired, and used by the bridge company for the transportation of persons and property at Harrison’s ferry, until the bridge was repaired.
    
      There was no proof, that the defendants had ever demanded or received any toll or reward for the transportation of persons or propertj' in their boat across the river. It was proved, that they kept the boat there in continual use for themselves, crossing to and from the ancient public landings; and that other persons and their property were sometimes put across the river in their boat, but without compensation asked or received.
    The loss to the bridge company, by the subtraction of tolls, which the defendants, and other persons who were occasionally accommodated with the use of the defendants’ boat, would have had to pay if they had crossed the bridge, was estimated at about a hundred dollars per annum.
    Upon this state of the pleadings and proofs, the defendants moved the court to dissolve the injunction, and the court overruled the motion. Whereupon the defendants applied by petition to this court for an appeal; which was allowed.
    Robertson, for appellants.
    Macfarland and Rhodes, for appellees.
    
      
      Franchises — Exclusiveness of. — In Parkersburg Gas Co. v. City of Parkersburg, 30 W. Va. 439, 4 S. E. Rep. 652, it is said : “In Bridge v. Bridge it was directly determined by the supreme court of the United"States that no franchise was exclusive unless so ascertained to be by the unmistakable terms of the grant. 11 Pet. 544, 7 Pick. 371; Richmond, etc., R. Co. v. Louisa R. Co., 13 How. 71; Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; Trent v. Bridge Co., 11 Leigh 521; Cooley, Const. Lim. 394, 395 ; Ang. & A. Corp. § 111.”
      Equity Jurisdiction — Taking Private Property for Public Use — Compensation.—Equity has jurisdiction to restrain the taking or damaging private property for public use without just compensation, even though an action at law will lie for the recovery of damages in such cases, after the property has been so taken or damaged. Mason v. Harper’s Ferry Bridge Co., 17 W. Va. 408, citing Trent v. Cartersville Bridge Co., 11 Leigh 521.
    
    
      
      The general statute concerning ferries, 2 Rev. Code, ch. 237, § 24, p. 260, provides, that “ all ferries now established, and which may be hereafter generally disused and unfrequented for the space of two years, shall be discontinued, unless necessary boats and ferrymen are prepared for the same, within the space of six months after the expiration of the said two years.” — Note in Original Edition.
    
    
      
      *This, however, was the fact, and notorious In that point of the country. — Note in Original Edition.
    
   AHI/RN, J.

I am of opinion, that the appellees have not shewn themselves entitled to the relief they asked., either in respect to their claim to the ownership of Harrison’s ferry, or in respect to their bridge. Not as proprietors of Harrison’s ferry, 1. because they have adduced no evidence of title to it; 2. because it had been for a long period disused, and according to their own shewing disused by themselves; and 3. because there is no proof, that the defendants have established another ferry at which the public was accommodated generally; the evidence only shewing that they crossed the river themselves in their own boat, which, I conceive, it would have been lawful for them to do, even though the public ferry had been in full use. Nor as *proprietors of the bridge ; because it is not clearly shewn that the ferry and the bridge are intended to accommodate the same line of travel and transportation, though probably that is the fact; and because the evidence proves that the defendants kept a boat for their own accommodation only, and there is no proof that it was intended for, or that it was used by, the public. Eor these reasons I think the decree should be reversed, and the injunction dissolved; without expressing any opinion as to the right of a ferry-owner to restrain by injunction, the erection of a new ferry, at which toll may or may not be taken, or as to the right to claim protection by an injunction for a company incorporated to build a bridge or construct a road, or other persons enjoying statute privileges, in the enjoyment of their privileges, against invasion or irreparable injury by the establishment, by individuals, of other means of communication, whether of the same kind or to accomplish the same object.

STANARD and CABELL/, J., concurred.

BROOKE, J.

I think the appellees have no claim to the relief they asked. They have not shewn themselves entitled to the ferry rights; and if they had, those rights have not been invaded by the appellants. No one is forbidden to pass a river, or to establish a passage across it for others, if the)' take no toll or reward. The statute concerning ferries, 2 Rev. Code, ch. 237, $ 21, p. 260, provides that “if any other person whatsoever shall, for reward, set a person or persons over any river or creek whereon public ferries are appointed, he or she so offending shall forfeit and pay twenty dollars for every such offence,” &c. and this is the security provided for the owners of public ferries against any violation of their rights. Neither have the rights of the bridge company been violated. Their charter does not give them the exclusive right to transport *passengers or property across the river. It gives them a right to demand and receive tolls for the use of their bridge: and their best security against the violation of that right consists in the superior convenience of the bridge for passage or transportation, which will prevent any injurious competition.

TüCKER, P.

I am clearly of opinion that the decree should be reversed. The appellees rest their complaint, and ask relief in equity, upon two separate and distinct rights and franchises; 1. upon their rights as ferry owners, and 2. upon their chartered rights as a bridge company.

As to the first; it will not be necessary to rest my opinion of their pretensions, either upon the ground of jurisdiction, or upon the supposed forfeiture of their franchise. That, it is admitted, can only be declared on a quo warranto, or some other similar proceeding. But whether the franchise be forfeited or not, it has been confessedly disused; and, considering the question as entirely distinct from and without reference to the bridge, it may be asked, whether the owner of a ferry, who has altogether abandoned the use of it, and who has entirely cast off from himself the duties incident to his privileges, can come into a court of equity, with any title to its countenance, aid or protection? His privileges are given as compensation for the duties and burdens imposed upon him; and when he has utterly disused his ferry, and no longer performs the consideration, what claim can he have in equity to the enforcement of exclusive rights? Nay more; as from disuse of the ferry he can make no profit from it, any violation of his franchise, if it be injuria, at least is not dam-num. Will a court of equity, then, which onlj' interferes upon the principle of preventing irreparable mischief, interfere where the party sustains no mischief at all? It may, indeed, well be doubted, whether even an action at law *could be sustained by a ferry owner, who had abandoned and put down his own ferry. See 2 Rev. Code, ch. 237, l 23, 24, p. 260. It may well be questioned, whether damages could be demanded of a jury, for the illegal use of that which the party himself would not use? and whether an action for a violation of the franchise, might not be successfully defended by shewing that it was disused or abandoned? What profits it yields, and what repair it is in, are proper for the consideration of a jury, to found their damages upon; Blisset v. Hart, Willes 512, note (a). But on these questions I shall express no decided opinion, as in dissolving the injunction, I am willing to do it without prejudice to any action at law the company may be advised to bring.

2ndly, The case of the appellees is not stronger under their chartered rights. The bridge company have no exclusive privilege for the transportation of persons or property over James River at Cartersville. The legislature neither gave nor contemplated such a privilege. Eor, when the law passed, Harrison’s ferry was in full operation; and thus it is clear, that the right to pass the river, without going over the bridge, was left unimpaired, to all the people of the commonwealth. There was no restraint upon the erection even of a new ferry, except the franchise of Harrison. There was no right in ' the bridge company to prevent any person from ferrying the river whom Harrison would permit to do so; they might even have received tolls, if he chose to permit them; for the charter of the bridge company imposed no restraint upon any one. Much less can we imply from the charter, an inhibition upon one or more neighbours to unite in "building a boat for the transportation of themselves, their families and property, without charging toll to any one. It cannot be denied, I think, that the charter of the bridge company does not operate to prevent any riparian owner from passing on his horse or in his boat, or any traveller from fording *the river. Nor do I think, that, by any fair construction, even a ferry owner (whose privileges are certainly more extensive) could gainsay such a right, or even the right of transporting without toll those who may desire to pass the river. His rights are sufficiently guarantied and protected by the assurance, that self interest would forbid any person from setting up a free ferry, with all its burdens and expenses, to his detriment. Such seems, indeed, to be the spirit of the general statute, which enacts a penalty of twenty dollars for each offence of transportation for reward, but not otherwise. Whether any other recovery can be had than this, which is given by the statute establishing public ferries, may be a matter of grave consideration; but, be that as it may, it would seem fairly to be inferred from the clause referred to, that transportation without reward, was not designed to be made penal, where there is no evidence of fraudulent intent to destroy the franchise.

B'rom this view of the rights of the ap-pellees, whether as owners of the ferry or of the bridge, I am Well satisfied, that, in neither character, are they entitled to the aid of a court of equity against the appellants. No toll appears to have been taken, and they say they gave orders that none should be demanded. The extent of the grievance is, that a few persons in the neighbourhood have kept a boat for their own convenience, without proof of any design to put down the bridge. If such design should manifest itself, or if they should demand toll, or establish a free ferry for all comers and goers, it will be competent to the bridge company to institute their action at law to try the right. The pretext of going into equity to prevent multiplicity of actions is without foundation; since there will be need of as many suits in equity as at law, to put a stop to the -proceeding; for the injunction will only bind those who are parties to the suit.

Decree reversed, and injunction dissolved.  