17 Ala. 576 | Ala. | 1850
The plaintiffs in error were the complainants below.- They state in their bill that the commissioners’ court of roads and revenue in Chambers county, on the 4th day of December 1848, granted to them a license to establish a toll bridge across Osenappa creek, in that county, where one of the public roads crosses it, and to erect a toll-gate for their benefit for the term of five years from that time, and to charge the rates of toll, which were prescribed by the commissioners’ court. They exhibited with their bill a transcript from the records of the commissioners’ court, showing the grant of the license, the rates of toll, and the bond given by the complainants according to the statute. They, state further that they accordingly, at great labor and expense, established the bridge and toll-gate and became fully possessed and in the exercise of their privilege, and that their bridge was the crossing place of the mail stage, of many travellers &c. subject to the payment of toll; also that defendant Ellsworth was the proprietor of a line of mail stages, and that the defendant Doolittle was his agent; than they and the other defendants, combining See. with the assistance of othen persons, had cut out and opened a by-road near the toll bridge-of the complainants, and built thereon a new bridge across the same creek, about a mile from the bridge of the complainants,, and that the by-road at each end intersects the public road and avoids the bridge of the complainants. The bill states that
Ellsworth, by his answer, controverts the right of the complainants to the toll-gate, alleging that instead of erecting a new bridge, according to their contract with the commissioners’ court, they had made some inconsiderable repairs upon and appropriated a bridge at the same place, which had been erected by authority of the said commissioners’court. He states fur-’ ther that the new bridge was more than two miles by water from the bridge of complainants, but within that distance by land. He insists that he had a right to erect the new bridge for his own use as stage contractor &c., and admits that he had used it accordingly. It appears by the answer that travellers had been permitted to cross at the new bridge, and so it appears that by means of the new road and bridge the complainants have lost the profits of the stages and travellers. It is also evident from the answer that Ellsworth, unless restrained, will continue to disturb the complainants in the enjoyment of their privilege. Without noticing the other defendants at this moment, we will examine the question between the complainants and Ellsworth. And in the first place, it is clearly a proper case for an injunction, according to the facts stated in the bill. — Gates v. McDaniel & Spurlin, 2 Stew. 211. But the answer, sustained too by the evidence, presents several matters of defence, beyond what appears by the bill, and we will consider them in their order.
It appears that the complainants, at small expense, repaired the existing bridge, and, having erected their toll-gate, became thus fully possessed of the privilege and in the enjoyment of its profits. It appears that this bridge was in the proper place, or very nearly so, and that it was safe and sufficient. The counsel of the complainants contends that they acquired a right to the existing bridge by virtue of their contract with the commissioners’ court, and we think the transcript from the record of the commissioners’ court in some degree favors this argument, for it appears that the privilege was to commence from the day of the order granting the license, which was before a new bridge could have been built. This and perhaps some other parts of the proceedings, which appear by the transcript, tend, in some degree, to support the conclusion that the parties intended that
The defendant in -the next place states that his bridge is more than two miles by water from the bridge of the complainants. The statute upon this subject, (Clay’s Dig. 514, § 29,) is — That no licensed toll bridge or ferry shall be established on the same water course, within two miles by water of any toll-bridge or ferry already established, with certain exceptions which are not material in this case. It was the intention of this statute, w;e think, to limit the power of the court in establishing toll bridges and ferries, and not to enlarge the privi
The defendant insists-that bis road and-bridge were made for -his own use, and that he-has .a right to use.it as stage contractor and otherwise. This right is founded on the proviso of the.act which-regulates :the licensing of toll bridges, ferries and causeways. — Clay’s -Dig. 613* §'26. The proviso is in .these words : “'Provided,--any person may keep a private ferry See. at which - ■no toll is-charged.” We think this-was intended to include a • bridge as well as a ferry, - although a bridge is not expressly mentioned. :But-whether, a bridge.or a.ferry, it.-mustbe.a private-one, that is-to say, it-must be limited lohis own use. -To ;this extent he may draw away the business and property of an -established-bridge, but no.further. If.he permit travellers -&c. to pass by his road and bridge, that would otherwise cross-the ■established bridge, it is a violation ofthe law and of.the.righis.-.of the proprietor-of the.established bridge, and he-is responsible for it, because no such thing fvas .intended. He-must use -his -private bridge so asmot to injure-others. The Legislature has •not indicated-an -intention, however, to limit his .own.use of such •j^ivate ferry or-bridge, and we cannot, do so. 'Hence we think he may use it for himself,-his family, his stages, or other property, his servants and-agents, and in short, -in every way :in ■which a bridge' is used. If he should permit others to use -it under any false pretence,-such as-being in his sérvice, he would -be-responsible for it. We therefore -think that Eilsworth must be enjoined during the continuance of the license of complainants, from -permitting-travellers or any other person or-.thing -which may be subject to- the-payment.of toll at the bridge of the complainants,"from passing-upon .-his. road or bridge, but saving to himself all his rights, as defined by this opinion.
■With-respect to the other defendants, we think that all who participated in producing or-continuing the disturbance ought-..to-be enjoined,-as-well as Ellsworth, during the continuance pf the privilege of the complainants, according to the. principles of this opinion, and with a saving of such individual rights as any of them- may have of using the new bridge, in conformity with the principles of this opinion.
And we think the complainants are entitled to a pecuniary recompense for their losses occasioned by the .disturbance ..of
The decree of the chancellor is reversed and the cause remanded, to be proceeded in, not inconsistently with the views above expressed.