
    
      Thomas H. Henderson vs. Jesse and Benjamin Maybin.
    
    Ia 1837, the Legislature chartered “the bridge over the Enoree river, near the site of the old ferry, lately erected by” the plaintiff, and by the same Act authorized the defendant to erect a toll bridge over the same river “ at or near Littleton’s old ferry landing,”— which was near three miles above the plaintiff’s bridge. The de. fendant’s bridge was erected at the proper place, and in 1840 both bridges were swept away by a freshet. The plaintiff re-built his bridge 200 yards lower down on the same stream, and the defendant re-built his bridge 720 yards lower down. The plaintiff then brought his action against the defendant for disturbance of his franchise, contending that his, the plaintiff’s, bridge, as re-built, was within the meaning of the charter, and the defendant’s was not. Held, that one bridge was as much within the meaning of the charter as the other, and, therefore, that the plaintiff was not entitled to recover.
    
      Before O’Neall, J, at Newberry, Spring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was art action on the case by the plaintiff against the defendants for erecting a toll-bridge over Enoree river, so as to injure the toll-bridge of the plaintiff over the same river. The plaintiff’s charter, of 1837, was for “his bridge then lately erected.” The bridge thus spoken of was washed away by the fresh of May, 1840; the site was so materially injured that it was thought advisable, by the commissioner of roads then having that part of the roads in his charge, to abandon it. The present bridge, according to his advice, was built 200 yards and upwards below: the road was changed so as to conform to this new passage across the river, and has so continued ever since. In 1844, the legislature renewed the plaintiff’s charter. The plaintiff gave a great deal of proof shewing that for more than forty years, there had been a bridge or ferry across Enoree river within a quarter of a mile of the present location— first by Bookfer and afterwards by Capt. John Henderson, the devisor of the plaintiff, and after his death, in 1816, by his widow and the plaintiff. The bridges or ferries of John Henderson and this plaintiff were within a few hundred yards of the present bridge. But there was no continuous use of a bridge for twenty years, at any one place, which would create a prescriptive right of an ancient bridge, and hence the proof in this respect need not be further reported.
    In 1837, the legislature chartered the bridge of the defendants, in the name of Jesse Maybin, across Enoree river, at or near Littleton’s landing ; and authorized the opening of a public road to the same. The bridge was accordingly erected and the road opened. At that time the southern bank of the river at Littleton’s landing belonged to Mrs. Wadlington, and for permitting the bridge to rest on her land, and the road on the southern bank of the river to be opened through her land, she was to be entitled, on contributing one-third of the expenses in erecting and keeping in repair the bridge, to have one-third of the tolls. In May, 1840, the fresh swept away this bridge, and Mrs. Wadlington having purchased from the plaintiff Noland’s land lower down the river, and being willing to the change, the defendants determined to change the site of their bridge. They accordingly removed it 720 yards further down the river, and altered the high-way so as to conform to this new passage across the river. The commissioner of roads said he was not consulted about the change : the road was, however, worked by. the Messrs. Maybin, to whom the road from Maybinton to the bridge, and perhaps beyond it, to its intersection with Henderson’s road, had been assigned as their part of road duty. The bridge first erected by the defendants under their charter at Littleton’s landing, was 2 miles 1105 yards from the bridge of the plaintiff: the bridge last erected by them was 2 miles 385 yards from the plaintiff’s bridge. The road by Maybin’s last bridge is 408 yards shorter than that by Henderson’s, and is the best road. The road to it turns off at Maybinton, nearly opposite to the residence of the defendant, Benjamin Maybin. On the right of Henderson’s road, descending it, and between the two roads, the defendant, Benjamin Maybin, dug a well, and placed a row of posts on the right side of Henderson’s road, so that a wagon driving to the well to water, could not return into Henderson’s road, but must pursue the road to Maybin’s bridge. On one occasion the defendant, Benjamin, was heard to say to a negro, the driver of a wagon, who had stopped in Henderson’s road, and who was taking water from his well, “ you impose upon me, you use my water and don’t travel my road, my road is the nighest and best.” On another occasion he was heard to say to a wagoner tl if he used his water he ought to travel his road.” At this time, however, a violent enemy of Benjamin Maybin, Samuel W. Shelton, had settled in Maybin-ton, and was using every effort in his power to prevent persons from travelling the road leading to defendants’ bridge.
    From 1840, after the erection of the new bridge, it was abundantly proved that defendants had a much larger share of the travelling patronage than before. The plaintiff’s loss of tolls gradually increased from one-fourth to one-half in 41-2 — 3 and 4.
    In 1844, the legislature refused to re-charter the defendants’ bridge. This action was brought before the defendants’ charter expired.
    The jury were instructed that the plaintiff could not claim by prescription. That his Fridge, erected in 1840, after his bridge of ’37 had been swept away, was covered by his charter.
    They were told to inquire whether the defendants’ new bridge was or was not within their charter at or near Lit-tleton’s landing. If it was, then the plaintiff could not recover. If it was not, it was then necessary to inquire whether a bridge more than two miles from the plaintiff’s was “ so near” as necessarily to injure the plaintiff’s chartered rights. If it was, then the plaintiff might recover, otherwise not. I confess that if I had been of the jury I should not have been disposed on either of these two last questions to have found for the plaintiff.
    The defendants, on the plaintiff closing his case, moved for a nonsuit, which I refused to grant — thinking that there was, perhaps, some evidence to sustain his case, which made it necessary to go to the jury. The'jury found a verdict for $363.65 damages — apportioning it as follows : $242.40 to be paid by the defendant, Benjamin, and $121.25 to be paid by the defendant, Jesse.”
    The defendants appealed, and now moved for a nonsuit, on the following grounds :
    1. That the defendants having a charter for their bridge, the plaintiff cannot maintain this suit against them tor a supposed injury to him resulting from the erection of their bridge.
    2. That the first bridge erected by the defendants having been carried oil' by a freshet, they had the right, under their charter, to erect their present bridge on the site where it stands; and the alteration in the public road so as to connect it with the new bridge was properly made, was adopted by the commissioners of roads and kept in repair by them, and was sanctioned by the public.
    3. That the charter granted to the plaintiff was for his bridge then lately erected, and the plaintiff cannot claim the benefit of his charter for his present bridge, which is between two and three hundred yards lower down the river.
    4. That even if the defendants had had no charter for their bridge, the plaintiff could not maintain this suit — seeing that the defendants’ bridge was on a different public road from that on which plaintiff’s bridge was located, and was necessary to enable the community to use a public road, laid out under the authority of the legislature, and kept in repair by the commissioners of roads.
    And failing in this motion, then they moved for a new trial, upon the same grounds and the following additional grounds:
    5. That his Honor erred in not instructing the jury that the plaintiff had no right now to object to the alteration in the public road from Maybinton by Littleton’s old landing, so as to connect it with the defendants’ new bridge— seeing that the same was made by consent of the owners of the land, was adopted by, and worked on under the authority of, the commissioners of roads, and was used as a public road without objection.
    6. That his Honor ought to have instructed the jury that, upon the evidence and the law, their verdict should be for the defendants.
    7. That upon the facts in evidence and the law applicable thereto, the verdict should have been for the defendants.
    8. That his Honor ought to have submitted it to the jury to determine whether the plaintiff’s present bridge is without his charter: — by assuming and charging the jury as matter of law that the plaintiff’s bridge was within his charter, and then submitting it to the jury to determine whether the defendants’ bridge was within their charter, he seemed to intimate an opinion, which it is believed he did not intend to intimate, that it was clearer that the plaintiff’s charter attached to his present bridge, than it was that the defendants’ charter attached to their new bridge.
    
      Boozer and Pope, for the appellants,
    cited IN. á McC. 387; 4 McC. 5 ; 2 Bail. 314; 1 Rich. 336; 9 Stat. 418, 469, 516, 608; 4 T. R. 666; 11 Peters, 548.
    
      Pair and Caldwell, contra,
    cited 3 No. Ca. Rep. 61 ; 2 No. Ca. Law Rep’ty, 72 ; 9 Stat. 325 ; 3 Steph. Com. 511 ; Cro. Eliz. 588; 3 El. Com. 219; 3 No. Ca. Eq. Rep. No. 4, p. 613.
   Curia, per

Evans, J.

The only question which I propose to consider in this case is, whether the plaintiff, Henderson, can maintain this action against the defendants. I shall assume, on the authority of Stark ads. McGowen, 1 N. & McC. 387, that the owner of a chartered bridge or ferry may maintain an action against one who sets up a rival bridge or ferry without a charter for so doing, and also that a'legislative grant of a bridge or ferry over Eno-ree river is a franchise, although it is a river not navigable, and the rights of the riparian proprietors extend usque ad medium filum aquae, as was decided in Coats vs. Wadlington. It may be that when the public roads on each side of the river are connected by a bridge, the bridge becomes part of the highway, and the right to collect toll for passing over may be the proper subject of legislative grant. Nor do I think it necessary to inquire whether Henderson’s bridge can be prescribed for as an ancient bridge. It has existed for a long time, more than forty years, but the proprietors have never set up any other claim than that which they have derived from legislative grants. The charter has been renewed from time to time for a term of years. As well might a tenant who has held under leases, regularly renewed, set up a title in fee after his possession has extended to twenty years. I suppose there can be no doubt that under the charters granted to each of these parties by the Act of 1837, both had a right to collect toll from passengers over their respective bridges, and the same rights would have existed after'the bridges were re-built, if they had been constructed on the original sites. The difficulty between them has originated from the fact that, in the re-construction, both bridges have been placed some distance lower down the stream — Henderson’s bridge 200 yards, and Maybin’s bridge upwards of 700 yards. Under these circumstances, the plaintiff, Henderson, has brought his action, and to enable him to maintain it he must establish this proposition, viz: That his bridge, as rebuilt, was within his charter, and Maybin’s was not. To determine this, it is necessary to see what are the terms of the Act of the legislature establishing these bridges as public bridges. By the 6th section of the Act of 1837, 9 Stat. 608, “ the bridge over the Bnoree river, near the site of the old ferry, lately erected by Thomas H. Henderson, is hereby declared to be a toll bridge,” (fee. By the 15th section of the same Act, it is enacted, t£ that a toll bridge is hereby authorized to be erected over Enoree river at or near Littleton's old ferry landing, and the same is vested in Jesse Maybin ; and the commissioners of the roads for Newberry District are hereby authorized and required to lay out, open and keep in repair a new road, leaving the present road at Maybinton; thence proceeding on the lands of Benjamin and Jesse Maybin to the said bridge ; thence down the south side of the river bank to the line dividing Wadlington’s and Noland’s land; thence on the said line,” (fee. It is very clear from the directions given about laying out the road on the south side of the river, that the legislature did not contemplate that the bridge should be at or below the line dividing the lands of Wadlington and Noland ; and if the case depended on this, it might be that Henderson could recover. But Henderson’s bridge is in the same predicament. His is no more the bridge which was established as a toll bridge by the 6th section of the Act of 1737, than Maybin’s is the bridge he was authorized to erect, at or near Littleton's old ferry landing, by the 15th section of the same Act. The only difference between them is, that Maybin has erected his new bridge at a greater distance from the original site than Henderson. But I am unable to perceive that this can make any difference. If Henderson had a right to remove his bridge 200 yards, he had a right to remove it a greater distance. Nor am I able to perceive that the fact that the commissioner of the roads advised or assented to the change of the location of Henderson’s bridge, can vary the case. If he could bring the new bridge within the charter by assenting to or advising its erection where it now is, he could do the same if Henderson had removed it a mile or a half mile below. The only difference between them in this particular is, that the commissioner in one case assented before the erection, and in the other he acquiesced in the change afterwards, and 1 understand that it was in evidence on the trial that the whole board of commissioners had excused the Maybins for not working on another road, on the ground that they had worked twelve days on the road leading to Maybin’s bridge ; thereby sanctioning, by necessary implication, the change of road and the location of the new bridge: — so that, if the sanction of the commissioner of roads could substitute Henderson’s new bridge for the franchise granted him by the Act of 1837, he does not stand in any better position than Maybin. It is very clear that the legislature designed to open, by a new road and bridge, a more direct communication between Maybinton and Newberry CourtHouse than the old one by Henderson’s bridge or ferry ; and, as a consequence, intended to take away the monopoly which Henderson had previously enjoyed. So far as the public is concerned, the change in the roads and bridge has been advantageous, as the distance is diminished, and the road is said to be better. He who claims a monopoly to the prejudice of the public should be held to strict proof of right: and such is Henderson’s condition, if, in the view above presented, both bridges, when re-built, were equally without their charters, then Henderson’s bridge was no franchise, and it was no violation of any right in him for Maybin to set up a rival bridge and receive toll from passengers, although he may have used some artifices to divert the travel to his bridge. But there is another view of this case which leads to the same conclusion. A bridge is a connection of the public road on one side of the stream with the public road on the other. The right to collect toll for travelling over this part of the public highway, is the franchise granted to these parties by the Act of 1837. When these bridges were both carried away in 1840,|and were re-constructed at more eligible places, and the public roads made to conform, with the acquiescence of the commissioners of roads and the public in general, who alone had a right to complain, I do not see any objection to considering the new bridges as substitutes for the old ones, and within the meaning of the charters. In this view each had a right to demand toll for crossing his bridge, and the defendants have been guilty of no infraction of the plaintiff’s franchise. But all of my brethren, who concur in the result of this case, do not take this view of the case. The plaintiff claims a right to recover on a very narrow view of the case, viz: that Maybin’s bridge, as rebuilt, was not at a place indicated by the charter; “ at or near Littleton?s old ferry landing.” But this does not aid him, even if it be so, unless he can establish the further proposition, that his bridge, as re-built, is within the terms of his grant under the Act of 1837. I think, if Maybin’s bridge is not within the meaning of the charter, Henderson’s is not: that they both rest on the same footing, and as a necessary consequence the plaintiff cannot recover.

The motion for a non-suit is granted.

O’Neall and Ward law, JJ. concurred.

Butler, J. absent.  