Hall v. Boyd

14 Ga. 1 | Ga. | 1853

By the Court

Lumpkin, J.

delivering the opinion.

We propose .to examine briefly, each of the grounds upon which the complainant in the bill, vests his right to relief.

[1.] Under the Legislative grant to establish a ferry across the Flint river, on the road leading from Greenville, in Meriwether county, he claims the right to build the bridge which is the subject-matter of this controversy: whether a franchise of ferry confers authority to erect a bridge, it is not necessary to decide. The bill admits, that the bridge is fifteen or twenty feet above the place occupied by the ferry; and that the ferry landing never touched the land of Boyd on which the west end of the bridge stands. Under the grant of ferry, therefore, nothing can be claimed for the bridge which has been substituted in its stead.

[2.] Can the complainant rely on the orders of the Inferior Courts of the two counties — bisected by the river at this point —establishing this bridge as a toll bridge ? We think not, for the obvious and unanswerable reason, that they provide no compensation to Boyd, whose land has boon seized and appropriated, noj -even for public purposes, but for the private benefit of Hall, the owner of the bridge. The Legislature itself could not exercise the power directly: much less can they delegate it to the Inferior Court of the respective counties of this State.

[3.] Can the claim which the complainant sets up, be sustained on the ground of the parol license, to build the first bridge ?— That bridge was completed in the fall of 1838, and lasted till December, 1843, when it was swept away by a flood. The present bridge was commenced the year following, and finished in January, 1845. But it is no where averred in the bill, that Boyd ever consented to the erection of this second bridge.— The first bridge being washed away, the party had no right to re-build under the original parol license. 2 Hilliard on Real JEstate, ¶. 16.

[4.] It only remains to consider the last ground upon which the title of the complainant’s intestate is placed. And here wo have had some difficulty. We have hesitated whether to let the bill stand and send the parties to a trial upon it as it is, or to affirm the judgment of the Court below, dismissing the bill, and thereby compel the complainant to file a new bill. The contract set up by the bill and the specific performance of which is prayed for, is to this effect: That about the time the first bridge was built, in September or October 1838, Hall called on Boyd, to obtain a title for the use and occupation of so much of his land as was needed for the western abutment of the bridge. That Boyd agreed to part with the privilege in consideration, that Hall would permit Boyd’s customers, to his mill in Pike County, to cross the bridge toll-free. Here then was a contract good and valid in Law, and which Equity would enforce — after Hall had performed his part of it. But as before stated, the bridge thus built, was carried off in December, 1843; and the new one was not erected till January, 1845. And it is no where charged in the bill, that this second bridge was erected, under, and by virtue of the original agreement, as to the first. And this, we apprehend, is a fatal omission.

We have looked closely through the bill, to see if there be any other allégation, upon which an equity would arise, to maintain this proceeding. It charges that during the • interval which elapsed between the destruction of the first bridge and the erection of the second, that the ferry was again brought into use, and that persons crossing at this place, were put over in this way. But it does not allege that the customers to Boyd’s mill, were ferried over toll-free, under the contract entered into between the parties, respecting the bridge. Had this averment been made, it would have connected the erection of the new bridge with the original agreement; and in point of fact, this may be true. It cannot, however, be fairly inferred from the pleadings.

So long as the first bridge stood, the contract was mutually beneficial; and notwithstanding it was in parol, it could have been enforced. But the destruction of the first bridge, without fault on the part of Boyd, placed the parties in statu quo, and there was neither part performance, or any thing else to give jurisdiction to a Court of Chancery.

We find it inadmissable, therefore, to maintain this bill in its present shape. Nor do we deem it advisable to do so, looking alone even to the interest of the complainant. The bill is not sufficiently full as to entitle him to sift the conscience of the defendant, so as to elicit the whole truth, touching this transaction.

Judgment affirmed.