10 Minn. 23 | Minn. | 1865
By the Court —
— By an act of the Territorial Legislature, approved Feb. 7th, 1857, it is provided “that Thomas McRoberts, his heirs, executors, administrators or assigns shall have the exclusive right and privilege of keeping and maintaining a ferry across the Mississippi River, at a point near the Mississippi Avenue in the village of La Crescent, for the period of fifteen years, and no ferry shall be established within one mile and a half below or above said point.” Laws 1857,268-9. Sections 2, 3, 4, 5, 6, are not here important. Section 7 read in thiswise : “Nothing herein contained shall be construed to contravene the provisions of any other act, except that the said Thomas McRoberts shall have the exclusive right of ferriage within the distance of one mile and a half above and below the center of the said Mississippi Avenue. Provided, The right hereby granted shall not extend beyond the land now owned by said McRoberts and his associates. Andprovidedfurther, That nothing contained in this act shall be construed as to affect the rights and privileges granted to the Winona and La Crosse Railroad Company, approved February 25th, 1856.” By an act- of the State Legislature, approved July 23d, 1858, (see Laws 1858, page 303,) the territorial limits within which McRoberts was authorized to exercise his ferriage rights, were considerably enlarged, and it was provided that no ferry should be established within one mile and a half above or below the enlarged limits. McRoberts alleges in his complaint that in 1857, he established a ferry as he was authorized
No question is made upon the right of a State in the exercise of its police powers, to grant the franchise of a ferry upon the Mississippi River, according to the doctrines enunciated in Conway vs. Taylor's Executors, 1 Black., 634. But the Appellants insist “ that the riparian owner at any point on the river has a right to and from his own shore and hank to operate a ferry or any other boat upon the river, and that the Legislature of Minnesota cannot take away that right,” and that therefore the complaint is insufficient because it tails to state “ that the ferry boat of the Appellants is operated to and from land not their own.” No authorities are cited in support of this position. All the books speak and treat of the right to run a ferry boat for public accommodation and to charge tolls, as a franchise. In Mills vs. St. Clair Co., 8 How. U. S., 581, the Court say that they deem the general principle not open to controversy “ that the establishment and regulation of ferries is a subject within, the control of the government and not matter of private right, and that the government may exercise its powers by contracting with individuals.” (2 Black. Com., 38; Id., 236; 15 Pick. R., 249.) Kent defines franchises to be certain privileges conferred by grant from government and vested in individuals. (2 Kent's Com., 458. See also 1 Black., 634 supra; 2 Washburn, R. P., 20.) And ferries which by the common law were regarded as “publici juris," and not to be established except on special authority from the crown,, have in many if not all the States of the Union, been subjected to the control of the Legislature, which has not hesitated by special as well as general enactments, to regulate them as matters of public police, and to confer upon individuals as well as corporations, exclusive rights of ferriage within certain limits, and in no case, so far as we have been able to discover, has the fact that a third party was the owner of a part of the shore within those designated limits, justified him in establishing a rival ferry therein. (2 Washburn R. P., 19, 20, 21.) As Justice Swaynesaysin Conway vs. Taylor's Executors, “ The vitality of such a franchise
It is to be observed that all these statements are made upon information and belief. This affidavit was objected to as incompetent “ to prove the organization of the Company or the rights and privileges claimed by the Defendants.” Granting that the act of incorporation of the company, as is contended by the Appellants, -organized the company, it would still be incumbent on the Appellants to connect themselves with the company by some proper averments, and this is done, as we have seen, only upon information and belief, which we think plainly insufficient when objected to as it was in this caso. The Appellants insist that the affidavit was as good as the complaint, which is verified in the usual form. In the first place an inspection of the complaint will .show that all of its averments are in form positive, and there are authorities in New York holding that where such is the case a verification in the usual form 'satisfies the requirements of the statute in regard to applications for injunctions. See Woodruff vs. Fisher, 17 Barb. S. C., 229; Smith vs. Reno, 6 How. Pr., 124; Miner vs. Terry, Id., 208; Croeker vs. Baker, 3 Abb. Pr., 183; Levy vs. Lay, 6 Abb. Pr., 89; Kinkaid and Wife vs. Kipp & Brown, 1 Duer, 693; Ross vs. Longmuir, 15 Abb. Pr., 326. In the second place, the injunction in this case was not granted ex parte, but on a hearing of all parties, and no objection seems to have been taken to the manner in which the complaint was verified. See Campbell vs. Morrison, 7 Paige, 160. Nor does it appear that any of the averments contained in the complaint were denied by the affidavit. We think this a proper case for the allowance of an injunction. Kent says, “It (speaking of the common law) declared all such invasions of franchises to be nuisances, and the party aggrieved had his remedy at law by an action on the case for the disturbance, and in modern practice he usually resorts to chancery to stay the injurious interference by
The order allowing the temporary injunction is affirmed.