6 Cal. 590 | Cal. | 1856
Mr. Chief Justice Murray and Mr. Justice Terry concurred.
The judgment is affirmed upon the reasons given in the opinion of the Judge of the Sixth Judicial District, which is adopted as the opinion of this Court, and ordered to be reported accordingly.
[The following is the decision of the District Court below, referred to in the above, and adopted as the opinion and decision of the Supreme Court—thereby becoming part of the record.]
It appears that plaintiffs are the owners of the bridge crossing the American river, in this county, known as Lisle’s bridge; that the same has been kept as a toll-bridge since 1850 ; that some $30,000 were expended in its erection, and about $10,000 since in repairs. On the 4th of April, inst., under and by virtue of an order made by the board of supervisors of this county, a new license issued to plaintiffs) defendants, without authority, have established a ferry contiguous to plaintiffs’ bridge, whereby the greater portion—about three-fourths of those who, as plaintiffs allege, have been in the habit of crossing over plaintiffs’ bridge—now cross over defendants’ ferry. Plaintiffs ask that defendants may be enjoined from using their said ferry to the injury of said plaintiffs.
At common law, no bridge or ferry could be erected so near another, bound by law to be provided with attendance, crafts, etc., as to draw away its profits. 3 Blackstone Com., p. 219.
Upon the principle that such prohibition was for the public good, it was deemed unreasonable to suffer another to interfere with the profits of a bridge or ferry already established at a considerable expense, perhaps, to the owner, as such interference was discouraging to undertakings of the sort, and consequently disadvantageous to the public. 1 Haywood, Law and Equity Rep., p, 526.
If Government, says Judge Story, means to invite citizens to enlarge the public comforts and conveniences, to establish bridges, etc., there must be some pledge that the property will be safe, that the enjoyment will be co-extensive with the grant, and that success will not be the signal of general combination to overthrow its rights and take away its profits.
“ It is a decision of the common law, that if a ferry be erected so near an ancient ferry on the same stream as to draw away its custom, it is a nuisance to the owner of the old one; and it was held by this Court in the case of Long v. Beard and Merrill, 3 Mur., p. 57, that in such a case an action lies by the owner of the first ferry against the owner of the new one, although the latter be a free ferry—for the injury to the plaintiff was not in the gains of the defendant, but in drawing away the travel, and thereby diminishing his tolls and the value of his franchise. The reason for this, as given by Mr. Blackstone, is that the owner of a ferry is bound to the public to keep it in repair and readiness for the use of the citizens, and that he cannot do if his franchise may be invaded, or if the income of the bridge or ferry may -be curtailed by diverting passengers by means of a rival unauthorized establishment of a like kind. Therefore, although the public convenience is the occasion of granting franchises of this nature, and, for example, the ferry established on the road chartered is publici juris, yet the property is private, and consequently an injury to it may be the subject of an action, for no person could be expected to serve the public by bestowing his time, labor and money in establishing a ferry or erecting a bridge, if its value could be immediately destroyed by the caprice or malice of private persons, in adopting means of drawing away the custom to some establishment of their own. It is, then, truly the interest of the public, as well as an instance of the private justice due to an individual, that the public grant of franchises of this kind should be protected by being held to be exclusive in the grantee, unless legally and duly ordered otherwise by the public authorities.”
Hence not only did the common law give redress for the invasion of the franchise of a ferry by an action, but upon its being found that such redress was not adequate, equity interposed the more effectual remedy and restraint of injunction. It is obvious that from the difficulty of proving the extent of the injury from time to time, and from the constant litigation arising out of the repeated invasions of the right that must naturally be expected from a rival erection, the relief in equity is highly salutary, and, indeed, is the only remedy that has any pretensions to be deemed adequate. The eases are numerous of redress in that method. In a case in the Exchequer—Lord Hale presiding—the owner of lands on both sides of the Thames set up a ferry three-quarters of a mile from an ancient ferry, and there was a decree to suppress it on the bill of the owner of the old ferry. 2 Anstruth., p. 608. The same principle was acted on in this State, in the case of Long v. Beard. It is true that then the defendant received pay, and therein expressly violated the statute, but the relief would have been granted without that circumstance. Upon the general principles stated in the latter part of the opinion, we consider there the law of the case well settled.
The same doctrine is laid down by Chancellor Kent, in the case of the President, etc., of the Croton Turnpike Road v. Ryder et al. 1
The chancellor, ini his decision, says : “ It is, then, a plain case of a material and mischievous disturbance of the plaintiffs in the enjoyment of the statute privilege, which was granted to them for public purposes, and founded on a valuable consideration. The only question is as to the remedy, and this appears to me to be equally certain. It is settled that an injunction is the proper remedy to secure to a party the enjoyment of a statute privilege of which he is in the actual possession, and when his legal title is not put in doubt. The English books are full of cases arising under this head of equity jurisdiction. The equity jurisdiction in such a case is extremely benign and salutary; without it, the party would be exposed to constant and ruinous litigation, as well as to have his right excessively impaired by frauds and evasion.”
Again, the same learned judge, in the ease of the Newburg Turnpike Company v. Miller, 5 Johns., Ch. Rep., 101, further establishes the same doctrine. In that case the plaintiffs had erected a toll-bridge over the river Wallkill, in connection with a turnpike, under an act of the Legislature, and the defendant afterwards erected another road and bridge near to the former, and thereby diverted the toll from the plaintiffs’ bridge. In granting a perpetual injunction, the Court said: “ Considering the proximity of the new bridge, and the facility that every traveler has, by means of that bridge, and the road connected with it, to shun the plaintiffs’ gate, which he would otherwise be obliged to pass, I cannot doubt for a moment that 'the new bridge is a direct and immediate disturbance of the plaintiffs in the enjoyment of their privilege. The quo animo is not an essential inquiry in the case; whatever may have been the intention of the defendants, the now road and bridge do directly and materially impair the use and value of the plaintiffs’ franchise; the new road, by its termini and its vicinity, creates a competition most injurious to the statute franchise, and becomes what is deemed in law, in respect to such a franchise, a nuisance. No rival road, bridge, ferry, or other establishment of a similar kind can be tolerated so near to the other as materially to affect or take, away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration by which individuals are invited to expend money upon great, expensive and hazardous public works, as roads and bridges, and to become bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right cannot be taken away by direct or indirect means, devised for the purpose.”
In the case of Gates v. McDaniel & Spurlin, 2 Stewart’s Alabama
In this State no person has a right to establish a bridge or ferry so as to receive compensation for the same, unless authorized to do so by license issued by order of the board of supervisors. A free ferry or bridge may be established, provided there is no regularly established bridge or ferry within one mile, immediately above or below. When, however, such is the case—when the board of supervisors has granted a license authorizing the erection of a public bridge, or the establishment of a public ferry, then no other bridge or ferry, whether free or not, can be established within one mile immediately above or below it, unless, in the opinion of the board of supervisors, it is required by the public convenience, etc. Section 6th, Act concerning public ferries and toll bridges, Laws 1855, p. 184.
It has been urged that, although the board of supervisors has no right to establish a bridge or ferry within one mile of one regularly licensed, except in cases provided by statute, yet any one can establish a free bridge or ferry. Such is not the law; a free bridge or ferry, in the immediate vicinity of one regularly licensed and receiving toll, would be much more injurious than the establishment of a regularly licensed bridge or ferry—for the one would only divide the profits, the other would be apt to render the bridge or ferry receiving toll of no value whatsoever. If the board of supervisors, representing the county, is prohibited from establishing a ferry or bridge within a prescribed distance, to the injury of plaintiffs, can it be said that individuals, without any grant or license, can establish a ferry or erect a bridge without incurring liability, although they thereby destroy the benefit of the franchise granted, and ruin the plaintiffs ? Most certainly not. Bridges and ferries are of the highest utility and convenience to the public. The Legislature, knowing this, and desirous of encouraging their erection and establishment, and being, at the same time, aware that they could not be built or established without large outlays of money, and that the profits accruing from them were not certain—as an inducement, authorized certain exclusive rights and privileges to be granted and conferred : among others, that no other bridge or ferry should be erected or established within one mile.
To say that the Legislature intended merely to prohibit other licensed bridges or ferries, and not those which were free, would, in my opinion, be charging the Legislature with an absurdity in the passage of the
The defendants, in their answer, allege that they have combined and formed a joint-stock-company. They do not pretend that they have any license from the board of supervisors, but they allege that their ferry is private, not public, and established for their own use. What are the facts? The defendants issue tickets and sell them to any one who will - purchase. Travelers, teamsters, etc., who otherwise would cross over plaintiffs’ bridge and pay toll, are met and requested by defendants or their agents to purchase tickets and cross on defendants’ ferry. The purchaser of a ticket pays one dollar for the same, and is authorized to cross at defendants’ ferry for one month. The purchaser of a ticket, defendants allege, becomes a joint owner, and has a joint interest in the ferry for one month. What a purchase ! In what has he a joint interest? In nothing, except the privilege of crossing over in the ferry for the period of one month. But, even if, by the purchase of a ticket, he does become invested with a joint interest in the ferry, nevertheless it is a clear and palpable attempt to evade the law. The evasion of a law is a violation of it. Courts of justice never uphold an evasion. The spirit of a law, as well as its letter, must be respected. That a person can ferry himself across a river in his own boat, no one will deny; but he has no right to use it, or permit it to be used, so as seriously to injure others. To permit teamsters and travelers, under the false pretence of being joint owners, to cross over in his boat, when otherwise they would cross the established bridge, is a violation of the law and of the rights of the proprietors of the bridge. Long v. Beard & Merrill, 3 Murphy’s Rep.; Harrell et al. v. Ellsworth, 17 Ala. Rep., 584.
How can the ferry of defendants be more public than it is ? Any one, on the payment of one dollar, can cross over in it for the period of one month. Not only is the ferry of defendants a public one, but they are receiving toll and running the ferry in direct violation of the statute. ■The dollar paid for the ticket is the toll charged for crossing. Section 18 of the Act concerning public ferries, Laws of 1855, p. 186, makes it a misdemeanor for any person to keep a ferry, and receive compensation for the use of the same, without first obtaining a license.
The plaintiffs have expended large sums in the erection and repair of their bridge. They have been duly licensed by the board of supervisors ; they have executed a bond to keep the bridge in good repair
They are compelled to cause the banks of the streams to be graded and kept in good passable order for the passage of loaded wagons and other vehicle. Sec. 22.
They are obliged, at all hours of the night, to give passage to all persons requiring the same. Sec. 21.
It will be seen that heavy burdens and duties are imposed upon plaintiffs. They are bound by the obligations of their contract; whether it turns out to be good or bad, productive or unproductive of profit, does not vary their duties; they must, during the term of their license, keep their bridge in good repair for public travel. If they fail to do so, and any one is injured or delayed thereby, they are compelled to respond in damages. They could not “ urge, as a defence or apology, that their tolls were inadequate, that their repairs were expensive, or that the whole concern was a ruinous enterprise.” In consideration of the burdens imposed, the law says plaintiffs shall be protected in the enjoyment of those rights and privileges which the statute confers upon them. The law will not sanction the establishment, without authority, of a ferry so contiguous to plaintiffs’ bridge as to destroy the profits, annihilate the tolls, while the burdens and responsibilities remain the same.
The defendants, in their answer, seek to impeach the validity of the license granted to plaintiffs; but this cannot be inquired into in a collateral way. .The law is too well settled on this point to need discussion. 17 Ala. Rep., 576; Conner v. Paxon, 1 Blackf. R., 68.
The defendants in this case, I regret to say, are not only running their ferry in open violation of law, but have evinced a disposition to evade and violate the restraining orders issued by this Court. If the public travel and convenience demand the establishment of a ferry in the neighborhood of plaintiffs’ bridge, let defendants apply to the proper authorities and obtain a license. If the law is unjust and oppressive, apply to the Legislature and have it changed. The Court must enforce the law as it exists; it has no option in the matter. No one, I think, can examine the law of this case, and say that defendants ought not to be enjoined. If, however,'' I have mistaken the law, defendants have their remedy by appeal; but, until the orders of this Court are reversed, they should be respected, and not sought to be evaded. An injunction must issue, in accordance with the prayer of plaintiffs’ complaint, and the ferry of defendants be abated until the final hearing of this case.
A. C. Monsow, District Judge.
