38 N.J.L. 39 | N.J. | 1875
The opinion of the court was delivered by
The bridge company was incorporated in 1839, for the purpose of constructing a toll bridge over the Delaware river, at the village of Columbia. (Acts, 1839, p-151.) By the 14th section of the charter, provision was made for compensation to the owners of ferries or fisheries that might be injured by the erection of said bridge, for any damages they might sustain thereby; and in case the officers of the company, and the owners of such ferries or fisheries, could not come to an agreement on the subject, the damages were to be ascertained by three freeholders, appointed in the manner prescribed by the 9th section of the charter.
A bridge was erected by the company in 1869, and the plaintiffs, who are the heirs-at-law of Henry Geisse, deceased, applied for the appointment of freeholders to assess the damages, caused by the erection of the bridge, to a ferry across the l’iver at Columbia, of which they claimed to be owners. The history of the proceedings antecedent to that now under review will be found in the reports of the previous litigations between these parties. The Columbia Delaware Bridge Co. v. Geisse, 5 Vroom 268 ; S. C., 6 Vroom 474; 6 Vroom 558 ; 7 Vroom 537.
The jury having found the amount of the damages, and the other questions of fact having been found by the court, judgment was thereupon entered in the circuit in favor of the appellants for the damages assessed by the jury. Upon this judgment the respondents sued out this writ of error.
Errors have been assigned, on the finding of the court, of matters of fact. Such assignment must be disregarded. Where a cause is tried by the court without a jury, the court is substituted in the place of a jury, and its finding on questions of fact cannot be reviewed by writ of error. Pelletreau v. Jackson, 7 Wend. 471.
The ferry of the defendants in error was between a landing place, at the foot of Columbus street, in the village of Columbia, and a landing place on the other shore of the river, at Portland. They claimed to have become the owners of the ferry as heirs-at-law of Henry Geisse, deceased, to whom the franchise of a ferry at that place was granted by an act of the legislature of this state, passed on the 6th of March, 1856. {Acts, 1856, p. 140.) The legislative grant to Geisse was of the franchise to establish, keep up and maintain a ferry from his landing, at the foot of Columbus street, in the village of Columbia, in the county of Warren, across the Delaware river, to his landing on the opposite Pennsylvania shore; and other persons were prohibited from using the said river for the purpose of a ferry within the distance of one-half a mile above and below said ferry.
The court below held that the franchise with respect to which the plaintiffs below were entitled to claim damages, was derived solely from this legislative grant. Upon this
It was further contended that Geisse did not, under the act of 1856, acquire such a right in the ferry as would have entitled him or his heirs to an action for disturbance.
The finding of the court was, that Geisse was the owner in fee of the landing on the New Jersey shore. Before the-passage of the act of 1856, a ferry between the two landings-was run by tenants who leased the ferry of Geisse, and used the landing on the Pennsylvania shore by the sufferance or permission of its owner. As far back as 1834 it was known as Geisse’s ferry; and in the title of the act it is called his-ferry. The expression, “ from his landing at the foot of Columbus street .... to his landing on the opposite Pennsylvania shore,” in the act, is merely descriptive of the termini of the ferry, by reference to its prior use, without regard to the title to the lands at each terminus. In the same year of 1856, one George Decker, who was the owner of the Pennsylvania landing, obtained a grant from the legislature of that state of the exclusive right of ferriage -for six hundred yards along the Pennsylvania shore. Thereafter the ferry was kept up and maintained uninterruptedly by the owners of the franchises and landings in both states, by agreements made from time to time.
Neither the fact that the title to the Pennsylvania landing was in another, nor that the exclusive ferry franchise on that shore existed in another, will operate to defeat the grant made-to Geisse by the legislature of this state. The grant was of
Precisely this effect was given by the court to the fact that the title to the landing and the ferry franchises on the Pennsylvania shore were in another. The jury was instructed to take into consideration, in estimating the value of the plaintiff’s franchises, the difficulty and uncertainty of making arrangements with the ferry owner on the Pennsylvania shore, and was expressly directed to limit the damages to be-awarded to the value of the plaintiff’s own franchise, excluding entirely the injury done to the owner of the Pennsylvania franchise.
Another class of errors assigned, relates to the admission of evidence of the income derived by the plaintiffs from the ferry for several years immediately preceding the erection of
The remaining errors assigned relate to matters of minor importance in the cause.
Exception was taken to the admission of evidence in relation to the rates of tolls prescribed by the board of chosen freeholders of the county of Warren, to be charged at this ferry. The rates were adopted at a meeting of the board in May, 1855, by a resolution, and were to take effect on the succeeding April. The proof of the establishment of these •rates was by the testimony of a witness who was present when •it was done, and by the production of a copy of the resolution certified bv the clerk of the board under his hand, to be •a true copy from the minutes of the board, which certificate •is dated'On the 4th of September, 1855.
The objection made on the argument, that there was no ‘Sufficient proof that the person who signed as clerk was, in fact, the clerk of the board, is not tenable. No objection was made at the trial on that ground. If that reason had then been given for the rejection of the evidence, the proof could readily have been supplied. When a party excepts to the admission of testimony, he is bound to state his objection specifically, and on error he is confined to the objection so taken. Burton v. Driggs, 20 Wall. 125; Moran v. Green, 1 Zab. 562.
By the first section of the act concerning ferries, (Nix. Dig. 337,) the board of chosen freeholders is empowered and di
The table of rates adopted is a license to the owner of the ferry to charge the rates established; and the statute, in. making provision for its authentication by a copy certified under the hand of the clerk, manifestly designed that the copy so authenticated should be evidence of the right of the-licensee to receive the stipulated sums for the stipulated services. For the purpose of showing the rates of toll allowed to-be charged, the paper was competent evidence. That the-clerk prefaced the resolution by a recital of other matters in relation to the manner in which the business ’was brought before the board, will not exclude the entire paper. No objection was made to the admission of a part of the paper on that ground. It w-as objected to as a whole.
That the table of rates- produced was adopted before the legislative grant was made to Geisse, is immaterial. The rates once adopted continued in force until changed by the board under the first section of the act. The testimony was, that no alteration ~was subsequently made in them. The rates fixed, applied to the ferry which was worked by Geisse, and was rated to him. They were applicable to it as a ferry, although Geisse converted- the ferry, which previously existed only by user, into a public franchise u-nder a legislative grant.
But even, if the rates- established, by the board before the
The admission of the testimony of Christian H. Geisse, that Heyberger and Stompfel were agents of his father in leasing the ferry to prior occupants, was also excepted to. The witness testified to a knowledge of Heyberger’s agency, from conversations he heard between Heyberger and the father. It is to be inferred that the conversation occurred in the transaction of the business of the ferry. It was.objected to on the ground that such conversations were had in the absence of the defendants.
Agency, as a question of fact, may be proved by the acts, declarations, or conduct of the principal and agent. 2 Greenl. Ev., § 60. The proof is not limited to acts or declarations in the presence of the opposite party. The fact of agency may also be proved by such evidence in a collateral proceeding, although the agent was appointed by a power of attorney in writing. The purpose of the evidence was to show that Lamb and Decker, who operated the ferry, as a matter of fact recognized the ferry as belonging to Geisse. That fact is sufficiently shown by the production of leases signed- by them, made in the name of Geisse, and in which they agreed to pay rent to him.
Furthermore, the agency of both Heyberger and Stompfel was prior to 1852. The decision of the court, that the franchise, with respect to which the action was solely maintainable, could only be derived from the legislative grant, made the. testimony in relation to their aots entirely immaterial.The only bearing the transactions with which they were con
The action was properly brought by the plaintiffs, without joining the owner of the franchise on the Pennsylvania shore. There being no unity of estate in the several owners of the two privileges, the interest affected was several; and, although the injury to each was due to a common cause, separate actions must be brought. Brown on Parties 211; 2 Saund. 117, note b.
Other exceptions appear on the record which it is not considered necessary to discuss.
It is sufficient to say that, having examined the entire record, we find no error in the proceedings, and the judgment should be affirmed.