17 Conn. 40 | Conn. | 1845
The plaintiffs were authorized, by the General Assembly, in the year 1708, to erect a bridge across Connecticut river, at Enfield, with the power to collect tolls, and an obligation to keep the same in repair for 100 years, with a specification of the subjects of toll. The charter further provided, that no person should have liberty to erect another bridge any where between the North line of Enfield and the South line of Windsor. This resolve has been somewhat modified, from time to time, and in 1839, this company were authorized to enlarge the same, or erect another bridge, exclusively for the use of the rail-road company : provided, that nothing therein was to affect, in any way, the rights of the rail-road company under their charter.
A rail-road company has, long since 1798, been incorporated, to build a rail-road from Hartford to Springfield. The paintiifs went on, and built their bridge, and for many years, have been taking tolls thereon ; and the defendants have gone on, and built their road, and extended the same across the river within the limits protected by the charter of the plaintiffs, by which the travel will, in some degree, be diverted
These questions are then presented; Have the plaintiffs any claim for the interposition of this court \ And is this the proper remedy \
It was intimated, on the part of the defendants, that the court would not be anxious to assist in the monopoly claimed by the plaintiffs. The court are only anxious to do justice to these parties; but as both claim under legislative charters, and both claim that they have in view a public object, and both have expended considerable sums .under their respective grants, we do not think that on either side there is any monopoly, in the odious sense of the term. Both grants were made by the legislature, under an expectation that some public benefit would accrue from them ; and such inducements were held out as were intended to carry into effect the proposed objects of their charters. These objects, it has been supposed, would be accomplished with more economy and less danger to the community, if left to private enterprise, than if they should become a subject of the patronage of government; and our legislature have been accustomed to make such grants to individuals, with the right of taking tolls to reimburse the expenses necessarily incurred. And it has been held, tiiat every such grant is exclusive,within the boundary of its obligation and extent. It is in the nature of a contract, which may not be impaired. 7 Conn. R. 48. But besides this, for the greater certainty and security of the grantee, the legislature have sometimes stipulated, that there should be no rival establishment within a certain distance, or in a limited period. If the law implies an exclusive right in charters of this kind, as has been said by this court, in the case of this Corporation v. The Connecticut River Company, 7 Conn. R. 29—48. an express stipulation to the same effect
When such stipulations are made, it becomes the duty of j^e cour{ f0 g\ve them such construction as will carry them into full effect.
To induce these plaintiffs to undertake the work, they had ¡n vjeWj which, at that time, was considered a great work, it was expressly provided, that no person or persons should have liberty to build another bridge between the North line of said Enfield and the South line of Windsor, across said river. The terms here are explicit, not depending upon construction.
The question, then, arises, are the defendants violating the rights of the plaintiffs thus acquired ? That they are passing Connecticut river constantly, with their locomotives raid the train, on a structure they have laid across said river, by authority of the General Assembly, and within the limits se-I cured to the plaintiffs, is not denied. But they say, this is I not abridge, or such abridge as is contemplated by the Iplaintiffs’ charter.
The defendants claim they have a grant, under which they have a right to lay a rail-road or way from Hartford to Springfield; that this of course imports a right to cross Connecticut river; that this structure over the river, is part of their rail-way, and not a bridge in the sense of the charter. What then is a bridge ? It is a structure of wood, iron, brick or stone, ordinarily erected over a river, brook or lake, for the more convenient passage of persons and beasts, and the transportation of baggage; and whether it is a wide raft of logs floating upon the water, and bound together with withs, or whether it rests on piles of wood, or stone abutments, or arches, it is still a bridge. The particular manner in which this structure is built, is not described ; but it is said to be much in the manner common to rail-road bridges, the bottom covered with plank, and the sides secured by railing. It is a matter of notoriety, that rail-road bridges are built upon solid abutments of mason-work, and resting on piers of stone between the abutments, thus giving strength and security to the frame above. It is not easy to see wherein such a structure differs from an ordinary bridge, except that as it is to endure a greater burthen, it is more solid and substantial.
It would seem, therefore, as if this was what would be ordinarily called a bridge. Bpt we agree with the defendants’ counsel, that it is not the name, which is sufficient to designate it. We then must consider the object — what was the intent of this structure ? The safe and expeditious passage of persons, whether from greater or less distances, over this stream, in the cars or carriages provided for that purpose, together with all baggage or freight entrusted to the care of the company. It may not, and is not intended to, accomplish all the objects of a common bridge, as it is not adapted to the common vehicles in use. But can that fact change its character as a bridge ? A bridge adapted only to foot passengers would still be a bridge ; and it would hardly be claimed, that such a bridge might be erected by the side of the plaintiffs’, under the provisions of this act. We find, then, a structure of the form of a bridge, with the name of a bridge, and of the character of a bridge. But go a step further, and see if it is not doing the business of a bridge ? Certain facts are not specifically found, which we all know must exist ; such as that every passenger in the cars from Hartford to Springfield must cross this river upon this bridge within the limits secured to the plaintiffs. It is certainly doing at least some, if not much, of the business which the plaintiffs had a fair right to expect, under their grant. We find, then, this structure, with the form of a bridge, with the name of a bridge, with the character of a bridge, doing its work, and in this way doing the very injury to the plaintiffs, which this proviso was designed to guard against. We cannot then but conclude it is a bridge.
It is said, it is not the bridge contemplated in the act, or “ another bridge.” It cannot be claimed, that by another bridge, was intended a bridge exactly like this, or that a bridge of iron, or stones, would not be within the provision, or even a bridge of boats ; nor can it be claimed, that a bridge much safer or stronger, would not be equally within the prohibitions. Nor is it the improvement in the structure
It is further claimed, that when the plaintiffs’ charter was granted, rail-roads were unknown -. therefore, it cannot be supposed the legislature intended bridges connected with rail-roads. The fact that rail-roads were then unknown, is denied by the plaintiffs. Without going minutely into their history, we believe, that for all practical purposes of public travel, rail-roads were, in the year 1798, unknown, in this country at least. But whether the fact is so or not, it can make no difference. Is a grant of this kind, which yve have adjudged to be a contract, to be set aside, because an advantage not contemplated at the time, may result from its violation ? Js.there any implied jmnditiorj, in such ¡j^grant, that upon gome new improvement being made, the grant should be void? How would such a claim be treated in other cases of great public improvement ? Suppose the city oí New-York had leased Fulton ferry for a term of years, when no boats were known but those which were moved by the hand and wind, or tide ; after the introduction of steam-boats, could they have leased the ferry to the persons, who would navigate it by steam ? Or could the legislature do this, if they had granted the ferry ? We know of no principle, by which this case can be distinguished from that.
But it is asked, afe the public thus to be deprived of all great improvements ? If it come to this, that public faith is to be violated, or the benefit of such improvements lost, we.
That a rail-road is for public use, though granted té a private "company, has been decided, so far as we are informed, by every tribunal where the question has been made, and recognized. by the silent acquiescence of all concerned, in this state. W hy then should not that principle be applied, in the present case ? We have heard of no objection, except that it impairs the obligation of the contract, by which this company are to have the exclusive privilege. And after the decision made by this court, in two recent cases, we certainly should not willingly make a decision, which could be supposed to have that effect. Enfield Toll Bridge Company v. The Connecticut River Company, 7 Conn. R. 30. The Derby Turnpike Company v. Parks, 10 Conn. R. 522. We know there are some respectable opinions on that side — two of the Judges of Massachusetts', iff.Hie Charles River Bridge v. Warren Bridge, 7 Pick. 344. And the opinion of Judge Me Lean, in the same case, in the supreme court of the U. S. 11 Peters 508. It may perhaps be said, that in the case of the Chesapeak and Ohio Canal Company v. Baltimore and Ohio Rail-Road Company, 4 Gill & Johns. 1. there is asimilar opinion. But the facts in that differ so materially from those in this and the other cases alluded to, and the court differed so much in opinion from each other, that little will be added to the weight of any opinion on this point from that case.
But the point was directly decided, by the supreme court of Massachusetts, long after these opinions. Boston Water Power Company v. The Boston and Worcester Rail-Road Corporation, 23 Pick. 380. The same question has been also decided, by the supreme court of New-Hampshire and Vermont, in the same way. Piscataqua’ Bridge Co. v. N. H. Bridge Co. 7 N. H. R. 67. Backus v. Lebanon, 11 N. H. R.
What are the rights of the plaintiff's ? They are derived from the grant of the legislature, and are what in law is known to be a franchise ; and a franchise is an incorporeal hereditament, known as a species of property, as well as any estate in lands. It is property, which may be bought and sold, which will descend to heirs, and may be devised. Its value is greater or less, according to the privilege granted to the proprietors. The owner of such property may repose, with the same security for its protection, under the wings of the constitution; but we know not why he should expect any greater exemption from public burthen, than the owner of any other estate. It was the intention of those who made that instrument, that the rights of all should be secured, and equally secured. If, as,, we believe, it is a conceded point, that the owners of lands, buildings and all property of this description, must yield up that property for public use, upon compensation, how is it, that property of this kind claims a higher privilege, or is guarded by stronger force ? If any property ought to be peculiarly guarded, it certainly is not that which is merely a matter of dollars and cents, but it should be the homestead, the fireside, the place where the owner has enjoyed his domestic comforts, and where he hopes to spend his declining years; and yet this must be yielded to public exigencies. The one, it is said, is liolden directly fay grant of the legislature, and to take it away, ⅛ impairing the contract. But are not all our lands held under a grant from the legislature, directly or indirectly 1 Was not the property all apportioned out, under legislative supervision'? Take the case of a grant of land made, as many have been, and as in some states they constantly are now made, directly by the state, to an individual; may not this land be
The right rests upon the principle, that individual interests must be subservient to that of the public, and that they must yield, when public necessities require. This, however, in constitutional governments, is not to be done, but upon compensation. The principle, then, is broad enough to include all kinds of property.
But the argument is based on this, that you are then impair- J ing your own contract, and thus violating the letter of the con- j stitution. Tliisis to assume that there is no implied reservation/ in any contract with the state, of the right of eminent domain, or that it does not apply to cases of this kind. If, as we suppose, it is admitted' in the case of a grant of land, we ask why the same principle does not extend to other grants ? It is said, however, that the constitutional provision, does not extend to a grant of lands; for that is a contract executed.
But it was decided in Fletcher v. Peck, 6 Cranch, 87-137. that a contract executed, was a contract within the meaning ' of the constitution of the United States ; and that case remains, and we trust will remain, unshaken. We cannot see, then, why contracts executed and executing, are not, as it regards this provision, placed, by the supreme court, upon the same ground. If, therefore, it is not a violation of this clause in the constitution, to take land, granted by the state, for public uses, we cannot see how it should be any more a violation, to take other property, even although that properly rests on an unexecuted contract. The doctrine seems to be countenanced by the words, rather than by the spirit, of the constitution.
It has been said, that in a case like this, tire law nets upon the contract itself; whereas, when the contract is executed, it operates only upon the interest under it. It is not caw to see how a law taking property acquired under a contract with the state, can be constitutional, and a law preventing the acquisition of property under that contract, can be unconstitutional. It seems, in effect, to say, that it is constitutional to take from a man the fruits of Ids labour, but it is unconstitutional to prevent him from gathering those fruits. In this case, the franchise is not in fact taken, but its value is in some measure impaired ; and we see not why compensation may not be made for this, as well as for any other injury to property. For the purposes of this ease, it is not absolutely necessary to decide the question; because, if the legislature has no right, upon any terms, to grant the privilege which the defendants claim, it would take away entirely this part of the defence.
Again, it is said that the plaintiffs’ charier cannot deprive the defendants of their common law rights, but was only intended to assure the plaintiffs that the General Assembly would grant no liberty to others to build a bridge within the limits.
The defendants claim, and it is not denied, that the place where the rail-road crosses Connecticut river, is above tide
These principles are adopted in the state of New-York. Palmer v. Mulligan, 3 Caines, 314.; and in Hooker v. Cummings, Spencer, Ch. J., says, the common law of England considers a river in which the tide ebbs and flows, an arm of the sea, and navigable, and devoted to the public use. It also considers other rivers, in which the tide does not ebb and flow, as navigable; but not so far belonging to the public as to divest the owners of the adjoining lands of their exclusive right to fisheries. 20 Johns. II, 100. Were other authorities needed, we might refer to The Canal Appraisers v. The People, 5 Wend. 444. 17 Wend. 594. Commonwealth v. Charlestown, 4 Pick, 180. 188. Bowman's devisees v. Wathen & al. 2 McLean, 377. 382.
Connecticut river, then, is a navigable stream, for certain purposes, above tide water; and it does not follow, therefore,
If, then, it is the duty of the government to provide ferries and bridges, and regulate the same, it must follow, that an individual, without license, cannot establish a ferry or erect a bridge, to the detriment of one so licensed; and so we find it every where settled. 3 Bla. Com. 219. Fitz. N. B. 184. Ogden v. Gibbons, 4 Johns. Ch. R. 150. 160, 1. The Newburgh and Cochecton Turnpike Road v. Miller & al. 5 Johns. Ch. R. 101. 110. Charles River Bridge v. Warren Bridge, 7 Pick. 515. And if a stream is navigable for any useful purpose, none but the legislature can authorize any interruption of it. 1 Pick. 187.
Will it be said, that this bridge is erected for the accommodation of the defendants only, and nothing is allowed to pass but their own engine and cars. See how this right is restrained in the authorities cited: <! He may make a ferry for
Whether, therefore, we consider the defendants’ case as resting upon their chartered rights, or on their claims as riparian proprietors, we come to the same result.
The remaining question is, whether, upon this application, the plaintiffs are entitled to the remedy they seek. The original bill showed, that the defendants were building their bridge, and prayed for an injunction, or other relief. The supplemental bill shows, that the bridge is built, and makes the same prayer. Now, it is said, that the relief sought does not correspond with that prayed for in the bill; for as the bridge is built, the court cannot enjoin against its being built. But it does not seem to the court, that such a construction should be given, as that the defendants should be suffered to take advantage of their own acts, now held to be unlawful, connected with the delays incident to the trial of a cause, to defeat a claim properly commenced. The relief then sought was that adapted to the case; and could the remedy have been then applied, or had the defendants respected the process, with intent to abide its award, the relief would have been precisely what was asked. To say now, that the remedy cannot be had, is to say, that the plaintiffs shall be turned round, by the wrongful act of the defendants, or by a delay
It is also said, that there are no appreciable damages to the plaintiffs; and therefore, the court will not interfere. The court do not find what the damage is ; nor is it necessary. They say, the bridge of the defendants will have a tendency, in some degree, to divert travel from the plaintiffs’ bridge. This must, of course, impair the value and lessen the profits ; and must occasion damage. What the amount is, it is not for us to say. It is true, that ¿the court find, that this damage is but little more than it would have been, a little above, or a little below, the protected line. That leaves it, to be sure, uncertain what the damage would be. It implies some damage. Such a fact must impair the value of the plaintiffs’ franchise, and diminish their profits. And it is said, that small injuries are as much prohibited as larger ones; and that the least right is as anxiously protected as the greatest ; (per Husmer, Ch. J., 7 Conn. R. 48.) and we do not need to be told, by a jury, that there must of course be some injury to the plaintiffs.
It was also said, that the damage, if any, arises from the better mode of travel, and therefore, furnishes no cause of complaint. But it does not lessen the injury to the plaintiffs, that the defendants, or the public, derive great benefit from it. They may enquire, can this be done at their expense ?
It is said, this is a matter of discretion, and will not be exercised when the injury is not irreparable. But it has been adjudged by this court, that when the right was not doubtful, an injunction would always be granted to secure the enjoyment of a stated privilege, of which the party is in the actual possession ; and it was added, that to restrain a multiplicity of suits, and prevent immediate damage to a statute privilege, is the exercise of a sound discretion. Enfield Toll Bridge Company v. The Connecticut River Company, 7 Conn. R. 50. 51. Hartford Bridge Company v. East-Hartford, 16 Conn. R. 149.
Decree for plaintiffs.
