We have held this cause a long time under consideration, it being one of great pecuniary interest to the parties, and involving a question of much public interest.
The question grows out of the construction of the resolve of the General Assembly, passed in 1818, for the benefit of the Hartford Bridge Company. It is in the following words :— “ That whenever the bridge company shall have repaired said bridge without a draw, and shall have raised and repaired the causeway, to the acceptance of the commissioners appointed by the original grant, the ferries by law established between the towns of Hartford and East Hartford shall be discontinued; and said towns shall thereafter never be permitted to transport passengers across said river, unless on the happening of the contingencies hereinafter mentioned.”
The occasion of this resolve was this. The petitioners, soon after their incorporation in 1808, had erected a bridge at the place of the present one, which they continued to enjoy until 1818, when it was carried away by the freshet, or so greatly injured that it became necessary to rebuild it. The General Assembly at their session of that year, provided that in rebuilding the bridge certain alterations should be made therein, and that the causeway through East Hartford meadows should be raised, and some further expenses incurred by the company, in consideration of which the Assembly passed the resolution above recited. The ferries were located a few rods south of the bridge, and up to this date, (1818,) had not been discontinued.
In 1859 the Union Ferry Company was incorporated, and empowered to establish a ferry across Connecticut river, about one and a half miles south of the bridge, and some two miles north of the south line of Hartford and East Hartford. This ferry they have established and are now using, and it is to prevent the continuance of it by a perpetual injunction that the present bill is brought. The petitioners insist that the legislature can not authorize the establishment of a ferry at any point on the river, within the limits of Hartford and East Hartford, without first making them an adequate compensation. These limits are about five miles north and south. This the petitioners deny. They insist that the legislature have not, by the resolve of 1818, restricted themselves to any such extent.
Much has been said in the course of the argument as to the rule of law which should govern the court in putting a construction upon grants and charters by the legislature. The respondents contend that courts are bound to construe them with great strictness, a strictness akin to that with which courts construe penal statutes; that is, that nothing shall be held to pass to the grantee by implication, nothing beyond the very word and letter of the grant, although the understanding of the parties be most- apparent, and although in any other case the instrument would be held to convey the thing intended; and some cases have been read in which judges have expressed themselves somewhat in this manner. But we doubt very much the propriety of any such general rule of law. We know not why such stringency is to be applied to a legislative grant more than to any other grant. In every, other case where we look to a contract to learn what are the rights of the parties, we seek to know what the contracting
We need not pursue this topic at any greater length; nor will we remark particularly upon the many authorities read on the argument in its elucidation. Ever since the decision of the Charles River Bridge case, in the court of Massachusetts, and afterwards in the Supreme Court of the United States, it has been held to be the settled law throughout the country, that charters are to be construed most favorably fori the state. The cases are all one way, and they have accumulated in the several states until our books are filled up with them.
What we have aimed at in these remarks is, not to reargue the question on principle, but to state what we understand the rule of “ contra proferentem” to be, and when it may be applied to get at the intention of the parties in public or private grants. Were we obliged to apply the rule here, we should of course give the respondents the benefit of it, as under the grant of their ferry they represent the legislature. But we do not feel ourselves driven to this extremity. We believe we can dispose of this case upon principles more equitable and satisfactory.
Let us then take up the resolve of 1818, and see what are its provisions. It consists of two parts; 1st, a suppression of the two ferries “ by law established between the towns of Hartford and East Hartford,” and 2d, a declaration that l<rsaid towns shall not thereafter transport passengers across the river.”
If there was nothing here but the first part — the suppression of the ferries — we think it quite clear that these two specific ferries, and what is fairly included in or meant by them, are suppressed, and nothing more. This is the very language made use of, mid this language is fully satisfied by a suppression of the exact things mentioned; and when this is the case, no other construction is called for, as possibly the one intended though not expressed. These two ferries were known and recognized, if not originally established, by the law of the state. They were local, definite, and specific, as is every ferry
Besides, these two ferries are, in the very resolve under consideration, said to be “ the ferries by law established.” When, then, they were suppressed, nothing was suppressed but what belonged to, or was embraced in, these ferries. If more was intended, it was most natural and easy to have said so. It is quite possible nothing more was intended than was expressed. Very likely it was supposed that no other ferry could be established between these towns, considering the character of the meadows on the opposite banks of the river, as indeed was suggested by one of the counsel of the petitioners; or that a new ferry anywhere between these towns would not thereafter be called for as necessary or desirable. But on this point we are not at liberty to speculate. We can only take the resolution
Once more, if I do not mistake the views of the court, we admit that the suppression of these ferries is a discontinuance of the ferries, substantially, as understood and used. We do not mean by the term “ ferry ” a mere naked line, or right to pass from the exact landing on one side of the river to the exact landing place on the other, excluding the right to shift a few feet or rods, the better to accommodate the same line or course of travel; such variation being nothing more than the travel of a few more feet or rods to enter or leave the ferry boat. The identity of the ferry is still preserved. To this degree, it would seem, we must allow the suppression to be carried, or else nothing is effected of the least conceivable interest to the bridge company. If a new ferry may be set up twenty feet below the old ones, for the same purposes, the suppression amounts to nothing.
And here, it is quite possible, though we have not noticed any such distinction in the books, that there is a difference in this respect between suppressing a franchise and granting one de novo. In the latter, it seems now to be well settled everywhere, that the grant of a franchise, as a bridge, canal, turnpike, railroad, or ferry, is a grant of right to construct and use the specific thing granted; and that, unless there be words restricting the legislature, they are at liberty to license other bridges, canals, turnpikes, railroads or ferries, according to the public exigency and their discretion, for it must be presumed that they are of opinion that such a necessity does exist.
Let this point, however, be as it may, we are satisfied that the new ferry here does not come within any such implied restriction. It is not the ferry or ferries which were suppressed. It is not so found by the court below, nor in justice could it be upon the facts stated and submitted to us by the judge. The new ferry might very properly have been needed had the old ferries not been suppressed. It accommodated a different line and course of travel, and has become most convenient, if
And further, we can not but think, in looking at the constitutionality of this new ferry,' that a good deal must be left to the discretion of the legislature. We ought to assume that they will act fairly and intelligent!y in the exercise of their constitutional powers, and will not intentionally disregard or transcend them. It is their bounden duty to provide needful and convenient bridges and ferries for the use of the people. In fulfilling their duty, in this instance, they have found the new ferry to be convenient, if not necessary, to a portion of their constituents, and who shall call in question the correctness of their conduct, unless they have exceeded their powers ? In their judgment, allow us to repeat, they regard the bridge as insufficient for the reasonable wants of those for whom they legislate; and if this is so, and they are not restricted in providing for those wants, they should, of course, license the new ferry without damages.
While we are bound scupulously to preserve unimpaired the rights of the bridge company, and not yield to the clamor which so frequently is gotten up against corporate rights after large expenditures have been made upon the faith of charters and solemn covenants, we must be equally vigilant and careful of the just rights of the public; and whenever we are con
We come next to a consideration of the second part of the resolve — “ and said towns shall thereafter never be permitted to transport passengers across said river”
It has been said that these words, taken in connection with what precedes them, may be considered as declaring or defining the old ferry franchises to be co-extensive with the towns of Hartford and East Hartford, and, therefore, that the suppression of the ferries virtually extinguishes the entire franchise, or removes it beyond the power of the legislature unless damages are given. This construction we can not sanction. It is unnatural and constrained; and, besides, it is not called for. For the reasons already stated, the old ferries were definite, specific and local. Hence we can not allow that, by mere inference, they are to be changed in all the characteristics which give them identity, especially as the resolve provides that in case of neglect by the bridge company to keep the bridge and causeway in repair, the said ferries shall revive and may be used as before, restoring nothing but what had before been taken away. Besides, there are other interpretations much more sensible and obvious which we should prefer to adopt. We are much inclined to believe that these words are but a circumlocution of the same idea before expressed, that these ferries shall be stopped, and these towns (who alone owned them) shall not open them again for public use. This is the most intelligent construction of the words, and it is one that satisfies the scope and import of the language made use of. We do not know that any more than this was sup
In order to reach the conclusion to which we have come, we do not find it necessary to look out of the resolve itself; much less to call in aid the rule “ contra proferentem,,” which latter, if applied, would undoubtedly decide the question at once for the respondents.
We will next look at the words by themselves, and see if this will help the petitioners’ claim. It has been most strenuously urged that they amount to a covenant that neither the towns of Hartford and East Hartford, nor any person or persons whatever, shall thereafter carry passengers across the river within the limits of the two towns. Certainly the words are not apt or appropriate to express any such covenant. And if such was the intention of the legislature, nothing could have been more easy than to have expressed it; and we must think it would not have been omitted. This very legislature had their attention called to this distinction, for in the charter of the Washington Bridge Company, passed in 1818, they declared, after suppressing the ferry in that case, “ that no person shall erect or establish any ferry across said river (the Housatonic) at any place below the ferry of Oronoque.” So in the charter of the Enfield Bridge Company, in 1798, in order to guard the grant in that case from competition, the
It may be well, perhaps, at this place, to inquire briefly into the nature and history of ferries on this river, as such inquiry may aid us somewhat in our investigation. Very little is to be learned from the records of the General Assembly. We find in our earliest statutes, and the same is true of the present statutes, that towns were required to keep and maintain such ferries as “ have been or shall be established by law ; ” and it is further declared that there shall be no public ferries besides those which are so established. Accordingly, from time to time, ferries have been established on this river by the legislature ; and to this day, each ferry is known by its name or description in the law which created it. Each one is located, fixed and defined, and is placed under the control of a commissioner appointed by the legislature. Ferries have been not only created, but have been modified and suppressed, at the pleasure of the legislature, like public highways, which in fact they are. Each one is confined to such tolls, and subject to such regulations, as are prescribed by the statute. It appears to us from all we can learn on the subject, that ferries were at first, as many of them still are, considered and treated as burthens or duties imposed on towns by the legislature for the benefit of public travel; but the early history of ferries in this state is so obscure that we know nothing of some of them but that they have become and are now held to be the property of individuals or of towns, or perhaps rather in the nature of property whose ownership rests upon immemorial usage or prescription, if it be proper to use that word in relation to a practice begun and continued as a duty. This is substantially the view taken of ferries by this court, and by the supreme court of the United States, in the case of the present plaintiffs against the town of East Hartford, reported in
Bridges ever have been, and still are, as is obvious we think from the statute book, considered to be public local burthens. We find towns are obliged to make and maintain them as much as highways, and it is just, because they are highways or parts of highways, that the expense of making and maintaining them is cast upon the towns. Where a stream divides towns, bridges are to be maintained at their joint expense. The same is true of ferries, only they are to be first established by law. The Connecticut river is a great natural highway, and has always been treated as such, whether passed over in the line of the stream or across it, and this highway, like every other public franchise, belongs to and is vested in the state, to be regulated for the benefit of all the people, and it can not be appropriated to an exclusive use but by the consent of the legislature. See Aiken v. Western R. R. Corporation, supra.
The general power of the legislature over streams and rivers within their limits, as natural highways for general use, is not and can not be denied by any intelligent jurist. If any one wishes to learn what is the settled doctrine of the common law, and on what grounds it rests, we refer to the cases already cited, and to some few more of the many to be found in the books. Palmer v. Mulligan,
In this view, it is obvious that the towns of Hartford and East Hartford have never had a right to maintain a public ferry except at the two old ferry places, where we suppose they did acquire a right by usage or prescription ; and therefore they could not complain if other ferries were set up by the legislature at other places ; nor can the bridge company complain, so long as the old ferries remain suppressed, and no other ferry is allowed which is substantially the same with them. If the last clause of the resolve means anything more than that the towns of Hartford and East Hartford shall not use or enjoy the old ferries, we do not know what that meaning isfor certainly nothing more was taken from them by suppressing the ferries. The duty of the legislature, as to the remainder of the general franchise, continued as before, under the limitations already specified; and, saving that limitation, they may declare how and when it may be used by a different and distinct ferry.
The prayer of the bill must be denied.
Advice that bill be dismissed.