28 Mo. 465 | Mo. | 1859
delivered the opinion of tlie court.
A public bridge is a common highway. A private bridge is similar in its nature to a private right of way and is subject to most of its incidents. (Woolrych on Ways, 195.) The character of a bridge depends more upon the use that is made of it than upon the means by which it was erected. If individuals, for the right to take toll, will make a public highway, the mode of remuneration authorized will not deprive it of the character stamped upon it by the purposes to which it'is applied. The charter granted to the Merimac Bridge Company shows that the bridge authorized to bo built was a public one, as it was intended to be connected with the highways of the county, was to be built at or near a ferry, and public roads were to be made leading from it. (Sess. Acts, 1853, p. 195.)
The right to erect a bridge and to exact toll from passengers crossing it is a franchise that can only be granted by the state. That right is personal and can not be transferred without express authority of law. In conferring the privilege, regard is had to the ability of the applicant to build and keep up the bridge, and as personal considerations may influence the grant, the franchise of common right is not transferable. There is nothing in the incorporating act which authorizes the company to transfer their bridge to any other body except the county of St. Louis, and such transfer would be inconsistent with the whole design of the law. It seems to be settled that a general assignment by a corporation of all its property and effects will not pass the franchise. The right of transfer in a corporation is confined solely to property. A corporation can not assign its powers and franchises to others to be exercised by them as trustees or otherwise. (Burrill on Assignments, 614.) It has been held that a turnpike road can not be levied upon by an execution issued upon a judgment obtained against the company. (Ammant v. The New Alexandria and Pittsburg Turnpike Eoad, 13 Serg. & Raw. 210.) The tangible property and estate of a corpo
There is nothing in the charter which points out the manner in which the company may acquire such an interest in the land as would authorize the use of the soil for abutments. If the company has merely used the highway it has no such interest in the soil as can be transferred. It does not appear that the company has any interest in any land connected with the bridge. The lien law (Sess. Acts, 1857, p. 668) certainly contemplates that there should be an interest in the land in the person making the improvement. It is true it provides that where improvements have been on leasehold estates, and those estates expire or are forfeited before the lien is satisfied, the improvements may be removed; but it does not appear here that the company ever had any interest in the land. What foundation is there then for a mechanic’s lien ? Why go to the Land court about it ? If the plaintiff is in pursuit of the bridge structure as personal property, it is evident he was rightly put out of court. If the bridge is a public highway, it is not easy to see on what principle it can be sold and removed. The right to take the toll can not be sold, as we have seen; then a public structure, useful to the community, is to be destroyed that its ruins may go to pay the debt not of its owners but of other persons.
Because bridges which are public highways can not be subjected to the liens of mechanics, it does not follow that there may not be bridges which will be subject to them. We have seen there are such things as private bridges known to the law. This consideration is a sufficient answer to the argument founded upon the word “ bridges” seen in the fifth section of the mechanics’ lien law of St. Louis county. (Sess. Acts, 1857, p. 669.)