after stating the case, delivered the opinion of the Court.
The exclusive ferry leases were contracts between the State and the petitioner.
The Binghamton Bridge,
The Supreme Court of the State has had the meaning of “ exclusive ferry franchise ” before it twice before this case, in Nixon v. Reid, 8 S. D. 507, and in Chamberlain Ferry & Cable Bridge v. King, 41 S. D. 246; but these cases did not require consideration of the effect of the term as applied to anything but ferries. The court said on that subject in the present case:
“All that is contemplated by the statute and all that was granted by the plaintiff’s leases was the right to operate a ferry together with a prohibition upon the granting boards from granting other ferry leases within the granted area during the period. . . . Nowhere in *433 the statute can be found or implied a provision that the State was binding itself not to construct, nor authorize the construction of, a' bridge across the river within the four mile area, or not to permit carriage by aviation across it. The fair and reasonable construction of the statute, is that it refers solely to transportation by ferry.”
.Coming from the State Supreme Court, this language is very persuasive of the meaning of the statute and would indicate that in its view. the building-of a bridge-was not a breach of the ferry contracts.'
The petitioner relies on the contract clause of the Federal Constitution, and is not prevented from invoking from this Court an independent, consideration of what the contract means, and whether by a proper construction, the building of a bridge impairs its obligation.
Appleby
v.
City of New York,
. We must therefore treat the question as an open one and determine as an independent matter what the parties must be held to have had in mind in the use of the term “ exclusive lease.”
The chapter of the Revised Code of the State, imme-' diately preceding that which directs the letting and granting of exclusive ferry leases provides for the building of bridges over the rivers of South Dakota. This close- relation of the chapters suggests that if bridges were intended to be forbidden by the contract, the parties would have- *434 been likely to mention a bridge as a breach. But there is no mention of a bridge in the statute or contract dealing with ferries.
On the other hand, it is argued that it was so well understood by everyone, including the parties, that the erection of a bridge in the forbidden .area would destroy the value of the ferry leases, and so defeat the real object of the leases, that an implication necessarily arises that a bridge would be a breach of the leases.
Reference is made to
Newburgh Turnpike Co.
v.
Miller,
The Chancellor said: .
“ It was observed in the case of
Ogden
v.
Gibbons
(
It will be observed that the facts there related, to two bridges, and the case is not necessarily an express authority holding that an exclusive franchise for a ferry excludes a bridge. Yet it may be strongly argued from the language used that that is what the Chancellor had in mind.
We think, however, a broader question arises in the proper construction of a public grant like this. The leading case on the subject' in Federal jurisprudence is that of
Charles River Bridge
v.
Warren Bridge,
“. . . as the whole community is interested in retaining it undiminished, that community has a right to *436 insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear.”
The case then before the court was held to be subject to the same rule, although one of a corporate grant. The act of incorporation was silent in respect to the contested power. The argument made in favor of the proprietors of the Charles River Bridge was the same as that of the Providence Bank, namely, that the power claimed by the State, if it existed, must be so used as not to destroy the value of the franchise granted to the corporation. The argument was rejected.
Chief Justice Taney, delivering the opinion in- the Charles River Bridge case, said [p. 547]:
“ But the object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed that the government intended to diminish its power of accomplishing the end for which' it was created. And in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary, both for travel and trade, and are essential to the comfort, convenience and prosperity of the people. A state ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished. And when a corporation.alleges that a state has surrendered for seventy years its power of- improvement and public accommodation, in a great and important line of travel, along which a vast number of its citizens must daily pass, the community have a right to insist, in the. language of this Court above quoted, ‘ that its abandonment ought not to be presumed in a case in which the deliberate purpose of the state to abandon does not appear.’ ”
*437
The same principle is declared in
Fanning
v.
Gregoire,
“A
contract binding the State is only created by clear language and is not to be extended by implication beyond the terms of the statute.
Fanning
v.
Gregoire,
The cases above cited are not exactly on all fours with thé specific issue presented here, but they serve to show with great emphasis the necessity for one who relies upon a public grant as a basis for a private right, to bring it expressly within the grant or statute,
It is clear from them that in determining the effect of a public grant to an individual the principle ut res magis. valeat quam pereat is not to be applied in his favor or an implication to be made enlarging his grant, as seems to have been the view of Chancellor Kent in Newburgh Turnpike Co. v. Miller, supra.
The contention that an exclusive ferry .-franchise should be construed to cover all methods of travel and transportation across the water is rejected in
Dyer
v.
Tuskaloosa Bridge Co.,
*438
The great weight of authority holds that a contractual term forbidding a ferry or a toll bridge does not exclude a railroad bridge.
Mohawk Bridge Co.
v.
Utica & Schenectady R. R.,
There is some conflicting authority on the main question.
Gates
v.
McDaniel, 2
Stewart 211 (Ala. 1829);
Norris
v.
Farmers’ & Teamsters’ Co.,
The strongest case for the appellant is
Mason
v.
Harper’s Ferry Bridge Co.,
In Hopkins v. Great Northern Railway, 2 Q. B. D. 224, 230 (1877), a railway company built a railway bridge and a .foot bridge across a river one:half mile above an ancient ■ferry, which then went out of business. It was held that the ferry could not obtain compensation for either bridge, the railway being necessary for new traffic, and the foot bridge being used by those going to the railway station or by trespassers. There was a dictum by a court of dis *439 tinguished English judges “ that the owner' of a ferry has not a grant of an exclusive right of carrying passengers and goods across the stream by any means whatever, but only a grant of an exclusive right to carry them across by means of a ferry.”
We can hardly say, therefore, from the weight of authority, that an exclusive grant of a ferry franchise,, without more, would prevent a legislature from granting the right to build a bridge near the ferry. Following the cases in this Court in its limited and careful construction of public grants, it is manifest that we must reach in this case the same conclusion.
The judgment of the Supreme Court of South Dakota is
Affirmed.