Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge

SUPREME, COURT. 420 Proprietors plaintiffs Bridge, of the Charles River The Proprietors Bridge, in error The of the Warren and others. 1650, legislature of granted liberty the Massachusetts to College, Harvard

In the otherwise, power dispose ferry by Boston, and of a lease or to from to Charlestown up passing ferry Charles River. The to set a had places, over between these authority assistance, of given by by the under the the court of governor, 9, 1636, individual; particular to a and order dated November afterwards was others, successively they having to of ‘privilege taking leased the tolls regulated when, 1650, in the .the,grant; ferry in franchise of this granted was to the col- expired. the of in the same had lege, rights Ihe lessees grant Under the the col- lessees, by its lege ferry profits continued to hold the receive the therefrom 1785, incorporated the legislature company until when Massachusetts to build a stood, tolls;- ferry over Charles where the granting company River them the bridge College pounds year charter, to to Harvard two pay forty hundred the during to years, seventy- years; which was afterwards extended' after bridge which the property to become the the commonwealth. The bridge was was built under this charter, corporation law; tolls always received the allowed keeping ’ order, bridge performing enjoined 1828, all that was on them do. to incorporated of Massachusetts company another for the erection of bridge, River, Warren Bridge, another over Charles to from Bos- Charlestown ton, Charlestown, allowing company take tolls;-commencing near where commenced, Bridge Boston, River terminating Charles eight about hun- dred feet from the termination .of the Charles River Bridge. The was to free after a and has few'years, actually become become free. Travellers, who for- passed Bridge merly over Charles' River Square, pass Cliarlestown now Bridge; the Warren and thus the deprived over Charles River company are tolls would of the have otherwise received. The grant- value of the franchise 1785, entirely destroyed. proprietors ed the act is now of the Charles supreme ge judicial filed bill in the River court of against Massachusetts Bridge, of the proprietors injuncticfn prevent Warren first for an the erection general afterwards for stating of the relief: that the act of the legislature Massachusetts, authorizing building of Bridge, the Warren an act was im- contract, obligations pairing therefore repugnant the constitution supreme United States. The of the court Massachusetts dismissed the bill of. th„ complainants; and biought by the case was Supreme writ of error States, provisions of the United under judi- Court the 25th of the section act The judgment supreme of 1789. ciary judicial court Massachu- plaintiils bill setts, dismissing error, . was affirmed. sensible, fully that it is duty powers Court tlieii exercising high con- on them Slates, ferred of the United to deal great constitution with these interests, (chartered extensive caution; property,) with the utmost guarding,

JANUARY TERM, 1837Í Bridge v. as far as so, to do rights property, at the same time care- fully abstaining from encroachment on the reserved states. plaintiffs in error insisted on two for the grounds judgment, reversal supreme decree court of Massachusetts. 1. That Har- entitled, College vard in perpetuity, ferry keep between exclusive, and Boston: that Charlestown the and was the had no right to establish another on ferry travel, the same of line because it would in- fringe the of college plaintiffs, the and of those the under the chartér of 1786. 2. That the true construction of the acts of the of legislature Massachu- setts, granting the privilege to build a bridge, necessarily imported, that the-legis- lature would not especially one, authorize another bridge, by and a free the side of the Charles so Bridge; River that the franchise which held would be of value; no grant and that this of the franchise of ferry college, the to the and the of the grant right of pontage proprietors to the Bridge, of the Charles is a River contract, impaired which is by the law authorizing the erection of the Warren Bridge. clear, By very the Court. is that in the form in which this case comes us, being court, plaintifis, before a writ of error a claiming to state the under either i.n rights, place contract; of these must on the ground cannot-sup- themselves of and port principles, the that the themselves law rights. divests vested It is well Court, of by settled the that a state law may retrospective decisions in its jested character, yet rights; and and not violate the divest constitution of the States, impairs obligation United unless it also the of a contract. Mathewson, Peters, 413, case of Satterlee v. 2 The cited. by was owned ferry right College, which Harvard was extinguished by The the ferry, of the Charles River all its building Bridge. privileges, The with was then ever, compensation and a money for in lieu of it. given at an end of tho and that of the ferry bridge nature, the franchise are different in their As and separate grants, established which each have words to connect were one, other; no- privileges of the of the there is rule of privileges legal interpretation could authorize the to associate these grants Court together; which to be any privilege given bridge to infer that was intended to the company, and been other. The charter of merely because it ha.d conferred a bridge is speak itself, instrument, interpreted by and must for and be its own terms. written public, company private is of franchises to a The certain public corporation; in a matter where the interest is There is and concerned. political of -Our country, situation of this or in the nature in- in the local nothing depart rules of stitutions, should lead this Court from the which construction statutes, system jurisprudence we adopted under the have derived good assigned introducing No reason can be for new and English from the law. corporations; adopt, and in favour of while we adhere rule of construction adverse law, in English every of construction known to' the common the rules without'exception. States strictly. are to In the case of the United v. Ar- bo'construed Public grants redondo, Peters, subject together by oh this are.-coliected the'leoding 6 cases Court; opinion principle and tile judge, the' of the learned who delivered public, passes by implication : Jackson grants nothing that in recognised, 165; 289; Knowles, Peters, Peters, Beatys 4 -The Lamphire, 3 v. The Lessee v. ; Pittman, Peters, Billings Bank v. 4 514 cited. Providence 514; Pittman, Peters, Bank Chief Billings the case The Providence v. “ is power, said, community as the Marshall, whole speaking taxing Justice undiminished; has a to insist that community retaining it that interested COURT. SUPREME Bridge; River presumed, pur- not in a case ought its abandonment to be in'which the deliberate appear.” does pose to abandon it not The case the Court state now before It is a of incor- principle precisely is in the same. charter from state. The act power. poration argument silent in relation to contested The in favour is same, words, proprietors almost, of the Charles Bank; is, that Providence claimed tlie power with that used destroy exists, as state, it be so used the franchise must value of corporation. argument must the same answer. granted to receive already power has fact, destroy been exercised And the so franchise, degree principle. affect cannot in existence value of tho not, depend upon having and cannot power does circumstance its not.' exercised end object government, prosperity and the promote the.happiness established; community by assumed, and it can never be power government intended to diminish its accomplishing end for which ours, country free, in .a continually was created: and like and enterprising, active wealth; advancing daily in numbers new channels of communication trade; comfort, both for found'necessary travel and are essential to the conve- nience, prosperity people. presumed to ought A state sur- never because, power; power, render this like the taxing community the whole corporation it undiminish'ed: and preserving alleges, interest when state surrendered, seventy years, improvement accom- important great in a travel, modation line of along which number vast daily pass; of insist, its citizens- must community right.to have a in the lan- Court, of this its abandonment guage ought presumed,.in “that not to be of the purpose in which the deliberate state to appear.” case abandon does not it of government be if, The continued would of value, existence no im- great by , was plications presumptions, and it disarmed of powers 'to accom- necessary creation; and plish the ends of the functions it was to designed perform, trans- privileged corporations. of ferred to the hands The rule of construction an- by Court, was not confined the taxing power, nounced nor is it so limited opinion contrary, On the distinctly placed delivered. ground on the community of that interests were preserving, concerned in undiminished, question; power and any power, then of whenever tho state is said to be diminished, surrendered or whether it be the taxing power, or other affecting interest, principle applies, the same and the rule of construction must be No one the same. will that the of great interests body question( people state, would by instance be affected the surrender of this of corporation, line travel to a great single to exact toll and exclude competition seventy years. for private While the of rights property sacredly guarded,,we forget,.that must community also have rights; and that tlie happiness well-being every and of depends citizen on preservation. their faithful incorporation proprietors act of The of the Charles River is in Bridge; form; (cid:127)usual and the privileges such commonly as are given corporations of that kind. It them the ordinary confers corporation faculties of a purpose for bridge; building and establishes toll, certain rates of which the company are authorized to take. This is the whole grant. There is no exclusive privilege given to them over the Charles.River, waters of their bridge; above beloW no erect bridge themselves, another prevent nor persons other erect- from one; ing engagement state, erected; from the no that another and shall not be undertaking not to sanction competition, that improvements nor make TERM, v. Warren Bridge et diminish the amount of Upon subjects its income. these the charter is silent: nothing and in it about a so said line travel much insisted on in the argu- ment, in they which are to exclusive privileges. used, No words are from to'grant any rights which an intention can plaintiffs be If the these inferred. tliem, implied simply are entitled to it must be from the grant; nature and n be cannot inferred from the words is made. occurred, the multitude of Amid cases which and have been daily-occurring the last forty fifty -years, first this is the instance in implied which such an ¿t .coni, for; has been contended and this Court is upon called to irfer it from an incorporation, ordinary act of containing nothing stipulations more than usual provisions and to-be found in law. every The absence of such contro- versy, many it, where there must proves have been so occasions to rise to give states, individuals, corporations that nor neither nor imagined that ever such a implied contract can be shows, such charters. men who voted forming contract; these never imagined laws were they such a and if it is it, maintained have made be a legal fiction, opposition must fact, intentipn truth of the and the obvious party. Court deal cannot states; thus with the reserved to the and legal intendments mere away reasoning, technical take any portion from them of that over their police own internal and improvement, which is so to their necessary well-being and prosperity. understood, Let it once be carry such charters implied with them these con- tracts, give property unknown undefined in a line of travelling; and you turnpike will soon find the old corporations sleep, awakening from calling upon put improvements this Court down the which have taken their' place. property canals, millibns which have been invested in roads and rail turnpike lines of travel which had been occupied by before corporations, put improvements We jeopardy. will shall thrown back to the still, century; obliged turnpike last to stand until the claims the old corpo- satisfied, permit rations shall be shall consent to states these to avail science, lights partake themselves of the of modern and to of the benefit of those improvements, adding prosperity, are now wealth the con- every part venience and comfort of of the civilized world. IN error to court Massachusetts.- the supreme judicial error, are a created act corporation plaintiffs 9th of Massachusetts, of the state on the March, passed “ An 1785, entitled act for certain incorporating persons pur- river, over Charles between Boston and pose building bridge Charlestown, and same forty supporting during years.” pre- states, amble of the act whereas the over Charles “ erecting bridge Boston .river, in the where the and Charlestown between place ferry Russell, is now will be of and Thomas public utility, Esq. kept, great act of others, this court for-an have petitioned incorporation, &c; to build the same them empower bridge/5 the size

The act tolls, prescribes authorizes certain taking SUPREME COURT. Bridge v. Warren River [Charlés and fixes certain which.it will not regulations permitted Charles river; certain impede, navigation enjoins things done, which the shall be order, to be kept bridge good and convenient use. fitted for constant “ of the act That The fifth after the said toll shall section provides, said commence, the or shall corporation, proprietors annually pay the sum of Harvard hundred College University, pounds, two and, term of the said at the end of the forty term, said years; during shall to, revert and be the the said .of common- property bridge to the said wealth; a reasonable and an- saving university, college for the annual income of nual compensation ferry; had not received said been erected.” bridge might was erected act; under the and after- authority bridge 9th of in an March, 1792, act wards, on which authorized from the western Bostcn to part a bridge making Cambridge, of Charles a work of River Was after reciting erecting and another utility, hazard proposed bridge plaoe diminish the for the Boston emoluments of Charles Bridge, may West therefore, for the encouragement enterprise, Bridge; declares, of the act “.that section proprietors eighth shall continue be a Charles River Bridge corporation body po- the term of' for and to be litic, from during seventy years, computed . was first bridge opened day passengers.” contained exhibits, The record relating establishment Charlestown to at Boston, where ferry place also erected; court Massa- proceedings general which the chusetts, there became the ferry Harvard property College. these verbatim,

Some of were follow: proceedings, 9th, Boston,Nov. “A Court Assistance holden at “ Present, Gov’nr, Gov’r, Saltonstall, Sir Richard Mr. Dep’y Ludlow, Endicott, Pinchón, Mr. Mr. Mr. Brad- Capt. Coddington, street. “ ordered, further in his shall first name whosoever give Gov’nr, will hee Mr. undertake to sett betwixt thap ferry upp Charlteii, and shall aé Boston the same at Mr. tyme begin appoynt; Gov’nr shall shall Id. for Id. for every person, every one hundred hee weight shall so goods transport.” TERM, 1837. v. Warren River al.] [Charles 5th, 1633. Boston, Present, November holclen at “A court Mr. Nowell, Treasu’r, Mr. Mr. Ludlow, Mr. Governor, Coddington, S. Bradstreet. “ the court to Brown allowed by Rich. over keepe fferry Mi’.' house, his and'is to have 2d. for every Charles ryver, against single, and Id. a if there be two or more.” hee soe piece transports, person “ Towne, Court holden at Newe 6th, Gen’all Att the 1635. Máy Mr. Gov’nr, Gov’nr, sen’r., Mr.' Deputy Present Winthrop, Endicott, Mr. Mr. Treasu’r, Pinchón, Mr. Mr. Huinphrey, Haynes, Bradstreete, and the Mr. Nowell, deputies: Mr. n “ there shall be a sett ordered that Boston fferry It is upp syde, hill, to men to Charlton and myll transport Wene- Wynd rates that the att the same Charlton semet, fferry-men men to Boston.” Wenesemet transport “ Newtowne, Cóurte held at Generali 9th mo. 2d'day A 15th, until the 1637. present.) (Adjourned “ Gov’nr, Governor, Mr. John Present,' Endicott, Mr. Deputy Herlakenden, Mr. Mr. Mi*. Bellingham, Stoughton,' Humfrey, Mr. Nowell: Brádstreete,' and Increase Charlestowne, Boston and betweene referred to the Thte fferry

“ 401. Treasurer, to let at A. the 1st of pr. Governor beginning for three from thence mo., and years.” 10th elections, held at Court Boston the 13th of a General “At 1640. mo., A. 3d “ Governor, Treasurer, &c. Mr. Mr. Present, the Samuel Sheap- lett the and Leift. between ard Boston Sprague, ferry Charlestown, cause, see when to whom the time cf Edward' at their discretion. is expired, Converse the 30th of the 8th mo. 1644. “At a session is or- beginning co’rte, ye. deputies dered magistrates passage with their attendants, necessary shall be' fferries,-together over it, at áuch ferries as are free, except paying thing appro- out, rented and are out of the or are countries’ hands, any, pfiatéd shall it is ordered be there passages .their paid- by ye. country.” “ from the records filed At a Further colony plfs. extract 8th mo. Court, &c. 7th day General Boston and Charlestown betweene granted ferry"

Colledge.”- elections, 6th of

“At Courte of begunne Generali May, » XI. —3 H Vol. COURT. .SUPREME Bridge et Bridge v. Warren with his James Heyden, part- answer petition all other Charlestown, for the satisfaction ners, ferry-men freed, no mistake or should there ferry-men, who our honored declared, It is free, and how hereby long: passage to be are, time, or from time chosen and such as shall magistrates, Court, the Generali with both at as serve deputyes pecessary and necessary free attendants, ferryes; by shall be over passage the term horse, man and at all times wee meane a attendants, during the but intended all or never deputyes, of their being magistrates expresseth time, and that order neither at ye. of either familyes intendeth any thing. nor “ elections, of held at of the Courte session Generali Att a third In to the of October, 1650. answer petition 15th of the Boston the hun- Dunster, Harvard Colledge, respecting president Henry the and the to the due from country rectifying college, dred pounds the trea- ordered that to the It is rent, which college. belongs fferry one hundered of the some of shall pay president college surer forbearance forbearance, desired; as is and with two years -pounds, be ends of this next that so the proposed out levy, be till it paid when the lease Towne, for the of Charles ferry accomplisht; be- president, the liberty shall expired, said of the of the ferry the behoofe College, dispose and for halfe thereof otherwise, the best and or moat lease, advantage making by the ser- it unto content, so as such he performe own disposeth his use as the order of thereof, boates for the sufficient and keep vice requires.” court error thus stated in opinion

The case of .is plaintiffs Court: record, 1650, that in the from the year appears “the to the Harvard president college Massachusetts granted to Bos- Charlestown of the ferry power” dispose liberty behoof of the behalf, and for the otherwise, in the ton, lease to hold and continued that under that college college; and to receive profits its lessees agents, keep ferry, In was legisla- until 1758. that year petition presented it. others, Thomas Russell and ture inconvenience stating Charles, river, ferries over advantage transportation for result from a incorporated, would bridge; praying between in the where the purpose ferry place erecting bridge TERM, 1837. Bridge et Bridge v. Warren River Pursuant and Charlestown was then petition, Boston kept. March, 1785, an act on the 9th- passed incorpo- the legislature, of the Charles the name of “The Proprietors company by rating^ Under mentioned petition. the purposes Bridge,” “in the were 'to erect charter, the bridge authorized company tolls were is now certain where the ferry granted, kept;” place limited to from the first opening the charter was forty years, commenced, time the toll for passengers; bridge and.from two hun- term, the pay were.to until the company expiration at expiration dred to Harvard College;-and pounds, annually, the common- was to be the property forty years, bridge “ or uni- ; it, to the said wealth the law college expresses saving, income the annual annual reasonable versity, compensation had not -the said received, bridge ferry, they might erected.” .been bu It was

The' was for passengers, accordingly opened June, the 17th charter extended from the of the arid the expiration at Seventy years opening time, of that it was to the The commonwealth. corporation belong to the hundred the sum of two annual paid regularly college and have all the on them, duties the performed by. pounds; imposed of their charter. terms

In of the Massachusetts company incorporated the name “The the the Warren for Proprietors pur- Bridge,” another over the Charles river. The pose erecting bridge bridge sixteen rods at its on the only side, Charlestown commencement,, from the commencement of the and bridge plaintiffs, rods at their termination on the Boston fifty apart, side. The about who either travellers over from pass Charlestown bridge, proceed . which receives the travel of roads, many Square, great public leading and the from the country; and travellers who passengers go n Boston, Used to from the over Charles River pass from and Bridge, before erection of the Warren square, through Bridge.. Warren charter,, the terms of the was to be Bridge, surren- state, as soon as the dered expenses, proprietors buildr it should reimbursed; but this ing supporting not period was event exceed six time the years com- company toll-. menced receiving When bill in filed, this case was original Bridge

. Warren built; and the had been bill was filed after the law, passage the. COURT. SUPREME Warren Bridge v. River erection, and for obtain prevent gene- order to injunction ral relief. relief, for that bill, among things, charged ground Warren obliga- the erection of the impaired

the act for pro- the state Massachusetts tion of the contract between and was therefore repugnant the Charles River Bridge; prietors Afterwards, a supplemental States. to the constitution United that far had so completed, been filed, bill was that stating bridge had travel; passed divers it had been persons opened other- would toll, over, and thus avoided the payment been received wise have plaintiffs. had bill, admitted that

The answer to supplemental but denied so could far that foot pass, completed, passengers had but passed the workmen superintendents persons with their consent. oven for a hearing the cause came this state pleadings Suffolk,-in common- for the court county, supreme judicial court term, Massachusetts,

wealth of at November 1.829, did not im- decided, the act Bridge, incorporating Charles' contract proprietors pair obligation bill. dismissed Bridge; complainants’ writ of error. complainants prosecuted for the Webster, case was Mr. Dutton and Mr. argued by .The Davis, Mr. for the de in error: Greenleaf and Mr. plaintiffs fendants.

Mr. Dutton the plaintiffs. answer, This bill and case comes before- the Court the' exhibits, &c., bill and contained in answer, evidence, amended the. reeord. bills,

The after forth several the plaintiffs, grants setting the made to acts of and and their compliance 1785, 1792, them and them, with the terms conditions of that the defendants complain to construct, about constructed, and have a between bridge Boston, and inbe, Charlestown so near to the as to plaintiffs’ brHge law, it; nuisance to that therefore contemplation pray defendants the &c. enjoined, The on defendants of an under act justify, authority passed TERM, Bridge Bridge v. Warren the Warren March, 1828, Corpora- the 12th >of establishing tion. this under which that act legislature, allege, plai.ntiffs themselves, of a con-

the defendants impairs obligation justify therefore, and'is, unconstitutional void. tract, this; answer, and the issue raised in their defendants, deny which this Court has one, of and the only jurisdic- these pleadings, 12th, 1828, does does, not, of March or tion, is, whether the said act of contract. impair obligation and such the issue, only the state pleadings,

Such being I to maintain this shall endeavour Court can,try, single viz: proposition, Massachusetts, on the 12th of

The act passed is the Warren re-' March, 1828, Corporation, establishing article of the of the 1st constitution of to 10th section pugnant law States, a state im- United prohibits passing contracts.- pairing obligation'of will come under many

In the discussion topics proposition it, with examination; all, however, connected resulting denial it.' affirmance or ' charter, which was passed preamble plaintiffs’ By that March, plaintiffs, 9th incorporating appears, “ where the between Boston ferry is be erected place bridge now the 5th section of the is and Charlestown kept;” act.it “ commence, said toll shall the said after the is pro- provided, to Harvard shall annually pay college corporation, prietors the said term hundred the sum two pounds, during university, forty years. face shows therefore, it, upon plaintiffs’ charter^ took between transactions place legislature,

certain college, grantees. the' be* The ferry college extinguished, belonged its an is to be erected in place: obligation imposed sum hundred college pounds pay grantees of.two. óf a there recognition right, college annually; after the charter for the' loss plaintiffs’ ferry, compensation expired. ferry, history,

All this leads legal examination ordinances; the nature colonial as it together .various appears franchise, at law. common and extent of such SUPREME COURT. Bridge et Bridge River v. Warren [Charles ah] November, 1630, On the 9th make an colonial government to offer of a one who. will to it ferry undertake set between up, Charlestown, and fix Boston the rates of &c. ferriage, 5th November, 1633, On the Brown is Richard allowed keep river, Charles house, over his and the rates are there ferry against It was, stated. does where this it whether was appear ferry set ever up.

On the 2d 9th month, 1637, this ordinance'was day passed. “ The between Boston and Charlestown is referred to ferry let, annum, at for three forty governor pounds per treasurer years.” 1640, 3d

On the 13th it is referred to Samuel month, Shep- Charlestown, hard others to let between Boston and ferry when the time Edward Converse &c. expired, 7th of

£)n month, the 8th was to the ferry granted college in these' words: “ The between Boston and Charlestown to the' ferry is- granted college.” ordinance, which,

. with others, By ferries, bewill relating found in the 56th and 57th record; . that the pages appears, lease,'to Converse was about was, there at expire, no other time, existence Boston ferry between and Charlestown. court, At session of the held on the 30th the 8th month, 1644, that' provided, with their attend- magistrates, necessary ants, shall have free all ferries over that have not been passage grant- ed or leased to arid their shall be any; paid by passage country.

On the 6th of 1646, an ordinance whs May, passed, the' explaining ordinance, and what is' intended .foregoing declaring necessary attendants, for the satisfaction of the ferrymen; making iriagis trates free, over all ferries. passage

This ordinance ferries, at all exempts magistrates contrary act of'1644; and is the one, only hundred period during of.one forty-five years, which, in the smallest affects the income of degree, Whether the amount ferry. charged country found to be too of, an account whether the trifling keep exemp- tion all ferries, at was claimed after ex- royal magistrates, and as ample, being does representatives royal authority, not appear. appears charters, ancient was incorpo- college

rated in 1650. May, TERM, v. Warren

Various were to the col- passed, confirming original acts before and the act of both after lege, incorporation. 1642, Charters, the ordinance Ancient

By “reve- page Boston and Charlestown,” nue of the between was ferry given the college. October,

In act on the 15th it is 1650, the passed provided, Charlestown, the of when lease the'ferry shall be in expired, in of the the behalf and for liberty the be- president, hoof of the said of the lease ferry, or other- by college, dispose best thereof to wise, and most his own con- making advantage tent, &c. &c. “ on 18th October, 1654, act passed speaks ferry to the of June, the act 27th formerly granted college;” 1710, “ said revenues speaks profits ferry being granted in Harvard college, Cambridge.” that the Thus it of this in appears, ferry, 1640, original grant was 1642, 1650, 1654, in in in confirmed and in 1710. acts ferries

Various were the colonial regulating passed by govern- between ment, several Boston and ferry regulating Charles- duties town. relaté They ferrymen, the convenience the number of boats,_&c. &c. The act ferry-ways, passed 1781, whenever the corporation Harvard provides, college shall make alteration the rates of shall ferriage, publish the rates them established. a 1713, there was

In where the project building bridge ferry was was and a committee appointed kept, corporation to “insist which the on hath to’ college college, and the the said at ferry;” time, profits government, same ap- Clark, to confer with the Dr. and fellows president pointed affair ferry. place held Thus, then, for one hun- appears college ferry with all the common dred and law forty-five years, ferries; as the colonial and only state subject regulations govern- time, fit, ments saw from time to to make.

First, afterwards, itself ferry revenues, granted; profits, &c. &c. land,

If one of his the land itself grants profits passeth. Comyn. Grant, tit. E. 5. franchise,

In order understand nature extent of this re- law; sort to the and this been uniform. must had common 432 SUPREME COURT. v al'.] [.Charles It is also the law

from-the VI. to the' time. time Henry present be shown that it has of this in cases where it can country, except cases; statute. or modified by overruled by adjudged In the Terms de is called a liberty, by Ley, ferry prescrip- tion, or to have a boat for a upon great king’s grant, passage and men for reasonable toll. stream, for horses carrying founded in hereditament, and is either It is called an incorporeal case, the In the one which supposes grant, prescription, grant. other, extent of franchise is ascertained the. usage; McGowan, 1 683; Stark terms Dane’s Abr. vol. grant. Nott vol. & M‘Cord’s-Reports. or to an indi- to a may corporation, belong government, he the use is

vidual; public. property may private, though franchises, which áre Petersdorf, 53, it is said that these vol. “ various, bodies be vested either in the natural person, poli- one-man, or in but the same tic; many; franchise identical another, for that one, has been cannot be bestowed granted 13, Abr. vol. 513. the former Also Viner’s would grant.’’ prejudice 512, it is Hart, case of Blisset V. Willes’ In a note to the Reports, that, franchise, it is a no one can “A said: ferry publici juris: license; erected, one is another when erect without king’s ad If without an damnum.- a second is be erected quod cannot license, ;- the crown has a warranto without remedy by erected quo action.” the former grantee well it is and in the nature be not repaired, popular, If the ferry is to be reformed or in- &c. of a presentment highway, mills, houses, &c., differs from case bake This formation. and of a nature. Hardres’ customs, are private grounded 163. Rep. land, to take in must a owner a his ferry

Every soil, not own the but he must have He need passengers. Creswell, 330. 6 Barnwell & 703. East. 12 general use. it. 15, 16. VI„ down in 22 is laid Henry doctrine l( and another is erected so near If I ferry by prescription, me; for I am bound -to a nuisance to sus- my ferry, to impair as otherwise, the use ferry king’s lieges; and repair tain 140, Abr. Nuisance In'Rolle’s be amerced.” I grievously may to- reference or doctrine is stated with fair the same 20, lineG-, market.1 428, If the Nat. Bre. says: in a note to Fitzherbert’s

Hale, —“ 433 TERM, 1837. but if nuisance; be intended á on the same it shall be day, market intended; and therefore it- it shall not be so day, on a be different 11 IV. Cites it be so or not.” issue, Henry whether put shall be 6.5, another cannot erect a to' license, ferry be erected

If a ferry B. He states the’ it. tit. same Piscary, the nuisance Comyn. Dig. “ on the case for nuisance, Title action in another doctrine place. ancient Black- if one so near “So ferry my ferry.” A.” erect.a MfCord, Nott & vol. 3,219; Com. vol. stone’s issue the writ ad the usual quod It'is practice England, But for a fair or before the damnum, patent granted. market not, of this does and cannot the execution process always judicial fair; will be the effect of the what proposed ascertain market settled, that in case it does to be well be in- seems prove doctrine the, fair, market or be may any existing patent repealed jurious In other words, of the fact. the writ -ad dam- quod upon proof . is not conclusive. 6 Modern executed, 229; 2 rmm, Ventris, Rep. Hale 220; Máris; Port. Levinz, 344; Tracts, de Hargrave’s 59} Patent, 4, 5, 6, 7; 2 Williams’ vol. Note Saunders, Dig. F.. Comyn. Institute, 406. 72; 2 4, p. in his Crown,

It is thus stated by Chitty Prerogatives 2 sec. ch.

. to remember does not It is most important king fair, without a writ ad damnum 'first quod market exe- being crown, done, cannot enable a even cuted; subject near to that of another or fair so a market as to erect affect person, therein,1&c. &c. interest his liabilities. of ferries are under owners obligations,"which individuals, enforced them or the These against public. declared to be and the law publici

franchises juris; gives ,or all' in cases by infor- presentment, remedy negligence injury, Salkeld, ,case. on mation, or action Paine v. Partridge, 717} 512; Salkeld, 3 198. álso which can They Willes’ Rep. law; on the for a disturbance; maintained at action by by- case Saunders,'Williams’-ed. &c. &c. 2 of-assize; distress; action 114} 683; 2 Ab. Bacon. 666; 4 Term vol. Dane’s Ab. tit. Dis- Reports, 6 tress, 6; F. Crokei Eliz. Term 710; 616; pi. Rep. Field, Huzzy v. ¿39. 13 Journal, No. Law All franchises, markets, as of fairs, these ferries are bridges, 1 XI.—3

Vox.. COURT. SUPREME 434 [CharleB v..Warren al.J consideration; and sufficient such as the on founded good expendi- them, in for the ture conve- money maintaining establishing pf are all publici nience safety public. They juris, liabilities, and duties which they from the compounded, rights, in toll, them. The to demand the notion results property money of these franchises, for the use and and receive enjoyment as the toll part parcel; recognised property, pro- both the law of this tected as property, England, country. interest, a beneficial these vests A grantee 'grant demised, leased,.or 79; Moore’s may mortgaged. Popham’s Rep. Case, Coke, 92; Tolls, 106, 110; 8 474; Webb’s Rep. Gunning 703; 5 3 Maúle Creswell, Creswell, 875; 6 Barnwell & Barnwell-& 247; Jervis, 57; & 1 & in Exche- Selwyn, Crompton Rep. vol. quer, be taken' on execution The franchise of a or turnpike may Massachusetts; of. In Chadwick’s debt,

in the law payment law, at common and sustained case, was an brought action o'f his for the loss the erection court, ferry, by for compensation 686; also 2 Dane’s Ab. Putnam’s 7th Judge opinion, vol. bridge. Pickering. of a- extent of this franchise

As to the local ferry, attempt made to it to the and the case of limit ferry-ways; “Ipwich'v. 14, cited; it is that a Brown,” Saville, 11, said, where Rep. “ferry and not in of the water, inis respect lánding place, respect one, another;” be in and the in it is also the water ferry case, owner must own the soil on ferry said both sides.

This of the case is overruled in Bárnwell & part expressly last And to the other Creswell, 703. as no- part means more than that a must this, ferry thing ferry-ways, landing places. one this; case was on both Rep. owning Hardres land Thames,

sides of set three of a mile from an ferry up quarters Branford. bill ancient ferry,at brought Exchequer .A it, adds, too:near sed suppress monopoly. coming reporter ceo; for books of VI. and to quxve de. contrary Henry pre- in like Court. cedents cases Court,

Afterwards another bill matter; the.same filed.for being it, on the Lord Hale decreed that new April, presiding 7th TERM, 1837. 435 River Warren v. al.] [Charles and that the defendants be should not should have suppressed, ferry boat to the use ferry annoyance an- plaintiff’s liberty 2 Anstruther 608. cient ferry. Rep. of the case Miller, Company Newburgh Turnpike 101; the stated and

Johnson’s Chancery,Cases, principle clearly ease, in this had erected plaintiffs as part applied. bridge, across the erected Wallkill; the defendants another free their road distant; land rods eighty purchased strip adjoining bridge and had a laid out road commissioners as bridge, public high- the toll way, purpose Kent, gate* plaintiffs. avoiding Chancellor, -said—The is not animo an quo essential inquiry case; whatever have intention of the defendants, been the do new road and materially use directly impair franchise. and value plaintiff’s road, No rival or other establishment, óf a bridge, ferry, similar for like kind, and be near can tolerated so to the other purposes, as to affect or take It materially custom. as a away operates fraud it. defeat grant, goes consideration by which invited individuals money expend upon great expensive and and to works, roads, hazardous as become bound bridges; them constant of a keep repair, good right an exclusive toll. This thus for valuable right, purchased conside ration, cannot be taken direct or indirect away by Also, means. “ v. Gibbons,” cited 4 Johnson’s Ogden Chancery Rep. from the ancient charters colony Massachu- appears setts, 110, that the same notions of exclusive page right there, ferries always prevailed prevailed England. For as 1641, near the time when the. early “ferry between Boston Charlestown was this ordinance granted college,” “ It is ordered court, thereof, passed. authority hath a sole whosoever shall have ferry granted, trans- liberty &c. porting passengers,”

Here is a direct assertion of an exclusive owner of a notice as ferry; worthy cotemporaneous exposition; and doubted, can Edward Converse, under it his lease reasonably from the between Boston and government, ferry “the Charles- town,” had the sole exclusive right transporting passengers between those termini?

All, therefore, which the claim in case at bar, is an plaintiffs SUPREME COURT. Bridge et Bridge v. Charlestown; between Boston and and if exclusive extent must have some local exclusive right, beyond ferry- .-i r or the exclu- planks otherw ways, would one at his could sive. If carried pleasure lawfully passen- Charlestown, them Boston to and landed within two feet gers Converse, of he would of not have sole ferry-ways the the right had No or of between those two carrying' points. ferry bridge “ be erected those near termini, could between in a being without sense;” the which is form of in Chief Jus- positive expression down rule; tice the without so in the lan- lays near, Parker being - Blackstoné, of as to draw custom of elder the away the ferry guage or or without in the of producing, language Rent, Chancellor bridge; competition. ruinous extent, therefore,

With this the held the the 9th ferry college 1785, March, of act the the a passed, making plaintiffs when corpora- for the in the tion of where the purpose erecting place bridge ferry take of transaction this, was the view we this is that the kept; act created this became the of corporation equity, assignees, franchise, or it this to surrendered their use was by operation 6 553; Thomas’ Litt. Barnwell 2 & Creswell, 703. law. Coke Charles place river, A over bridge, ferry is deemed by to be a matter of the are public utility; disposed to a liberal charter to such are as to persons undertake grant willing hazardous an The are with to their enterprise. ready college part so income; for an their and Thomas Russell annuity, equal then ferry associates, and his are to make the first in this willing experiment fifteen feet in over country, throwing length, hundred waters, them, for tolls to be for the navigable granted period the forty years. is to then, hot be ferry, which could ancient extinguished; the the

done without nor without authority government, con- 3 Modern . sent 294. college; Rep. two hundred to the petitioners pay pounds annually, for for the loss forty years, compensation ferry;

college, became a its assent ¿greement party, by given college time, Record, and its subsequent acceptance annuity; .at Í24. 122, but the at this keep up ferry place extinguished, is .a there not;

beneficial interest for the act college TERM, 1837. 437 v. Warren et al.] “ of a reasonable and annual tó the compensation college saving of the ferry.” income annual seized franchise of is said government ferry. so, were then óf a If build a passed “in where was ferry kept;” agreeably place bridge Coke, 78; 26; Coke, Palmer’s Popham’s Rep. doctrine did, But there evidence government intended franchise, use, .as property, to seize exer- private There was'-no eminent domain. necessity cise motive for for the this; because had petitioners doing bridge agreed pay cf for the surrender their for the ferry the college forty years;- and act confirmed‘and executed that incorporation agreement. shows, that it The whole transaction was matter ar- previous the three and the between terms and parties; conditions rangement were made of the act. obligatory bargain Now, obvious, it is that if had government given college “ build a where authority place ferry had the it would have same local extent of franchise that kept;” the the Or if of Charles had. proprietors "River ferry had first Bridge of the the and ferry afterwards had college, obtained purchased a “ to build a in the where the place charter bridge was ferry kept;” been the same. result would have the interest in The beneficial vested the owners of the and of ferry same, is to wit: the the demand and bridge, right receive a cer- rate of from all toll from one persons passing tain to the town other; same; the the the same; the the mode place object dif- only ferent. all these franchises, which powrer are regulating publici in the is an incident of

juris, In government. sovereignty.' case of it to the ferries extends number and place ferry- of boats, and kind number times of off ways, putting side; to all those details which concern each reaching conve- and and nience safety passage transportation.. the ease

In in power regulation govern- ment exerted at the time the charter is granted. place built; is to where dimensions, materials, bridge lights, details; draws and other and settled prescribed the act: and the act them to government corporation, holding strict performance of all duties imposed. SUPREME COURT. v., of 1785 charter and its extension 1792: of a build a

The first over a grant right navigable It was an exercise of the power river. state over sovereign certain public rights. the consequent severance

By empire, independence states, all vested in the public property public rights, as states, successors crown government parent ' The 1785, was, country. year Massachusetts there- these as had before fore, as over ample complete ever the separation. these, as Such been held always by grant England in. as such

or as fisheries exclusively private prescription, property; over sea; ferries or arms bridges arms rivers navigable sea, only subject regulations convenience public required. In held con- abridge rights, generally grants “ shown; Tracts, must be Law De maris,”

sideration Hargrave’s jure 36; Waters, on Tide 18 to 106-7. Angel Thurcot,” 4 Burrows, In Carter v. Lord 2161, Mansfield says, “ not rivers land navigable, proprietors own adjoining ad medium arms of so he can aquse; sea; but if filurn show a he right grant, prescription supposes grant, an exclusive arm of sea navigable . In cases the laid following river.” same doctrine is clearly 4 Durnford and East, 439; 2d Puller, down: vol. Bosanquet East, 669; 1 Durnford 472; 105; Modern 4 Durnford Rep. East, 668. is the Such law of England. Connecticut, the law of It is 1st vol. Connecticut- Rep. ££that the say, law, fishing, by Court' common ocean, in the sea, arms of and in rivers, navigable below high mark, is common to all; Water and the state ex- can only clusive right. public may of grant exclusive right fishing in, and if river; navigable may granted, prescribed for.” the law of is New York. See Platt, Johnson, v. 17 195: People of

It is law Massachusetts. In the of 6th vol. Mass. Rep. Chief Justice Parsons states the common doctrine, and law it has alterations since the first undergone óf the country. settlement Commonwealth Irih. v. Charlestown, 1. With .180. Pickering, riparian regard owners land streams, riot upon navigable, TERM, 1837. 439 al.j' v. [Charies modified; has not been own, law they common England, stream. middle to the owners land with on sea

But, shore, regard bounding own, sea; law of or arms to low by Massachusetts, mark, where the tide does ebb one more than hundred water law, the common could rods: hold by high though, only mark, all below Yet water belonged they might, king. hold 1 Mass. 231; by prescription against king. Rep. grant Tide 140; 17 4 do. on 4 Waters; do. Mass. 522. 289; Rep. Angel Massachusetts, act of the An touching public pro- has the same force and an act of effect as perty public rights, par- liament in England.

There is, then, restraint or limitation matter of none constitution over grantor subject grant: none in Massachusetts: the act itself that with interferes thepos- session an exclusive by grantees. construction rule of charter: applicable a learned

It was said in'the court below, that judge, general was, that in rule law governmental grants, nothing passed by Where, ask, I is would rule to be implication. general books, nor can found? Not in from inferred surely; adjudged it.be cases, All those cited in the rule crown"or cases support and these, as Chief intimated Justice prerogative grants; strongly different, 2 Blackstone, stand on a 500, Eyre, Henry’s footing But, acts these crown parliament. even grants regard where the entitled to most in- royal grants, prerogative and where the made at the suit of the dulgence, grant grantee; are a valuable there cases where and' variety rights, privileges franchises, Abr. title implication. Bacon’s pass necessary 7; F. Plowden, 336, Rex Twine, 179; Croke. Jac. 2; Prerogative, 30; 30; Coke Seville, 132; Ventris, Rep. Dyer’s. 409; Rep. Whistler’s Rep. s rule i laid thus. down general by Uhitty Prerogative, 3,. 391. 16, sec.

chap. In' cases, is, between ordinary subject principle subject, shall be construed, doubtful, if the most lie meaning use the most strongly who against grantor; presumed cautious but, words for his own case advantage security: whose flow from king, his grace grants chiefly royal the rule is at all bounty, otherwise; and crown times grants SUPREME COURT.. 440 v, Bridge Warren et Bridge' River al.] [Charles thp where a most doubt favourably king, construed been fair of the instrument. the real as to. meaning exists to this even rule: limitations exceptions there are But in construction is to be 1st. No made extravagant strained obvious, intention be are if the royal grants king; favour liberal receive interpretation. fair shall in favour The construction subject, 2d. leaning made at the solicitation show that it was not if scientia, et mero certa motu but gratia, regis, speciali ex grantee; Grant, C. 12. 112; Coke, 10 Comyn. Dig. consideration, are If valuable they

3d. king’s grants . strictly patentee. shall construed him, bind in valid, when general though king, grants c,h. consideration, as are bound by grants; subjects without 16, sec. 5. said, those in which it is that when

There are cases things, crown, such' as the of the flowers of goods to be are parcel said &c.,'come into the waifs,1 felons, possession, estrays', king’s but words; without crown, in the and do not express pass merged reference. The can be made certain by these will pass, even cited, is Justice Banne, which' has explained of. c.ase of Somerset of the “Duke in this v. Fog- Bailey way S75. Creswell, 5 Barnwell and well,” be- in law for the is, no foundation supposed analogy There then> in this acts crown in grants legislative tween England, grants rules to the strictest But if the act of 1785 were subjected country. a liberal construc- bé entitled to to crown would grants, applicable valid, for it is adequate, tion for upon good, grantees; consideration. a meritorious impli- bound necessary is as much

The state of Massachusetts the case This is decided in are. in its as individuals cation grants, .“ 522. Baker,” Mass. Rep. v. Stoughton stated well country, true notion of prerogative pre- as 1 Mass. distinguished Parsons, Rep. (arguendo), rogative England. whole; of one is the cause against England prerogative first case In the feelings, of all one. is the cause here-it against last it; virtues, are enlisted as the vices, against well that the ju- more of it: here it is and, therefore, important favour TERM, claim of should be courts should take care dicial prerogative watched. more strictly told, below, we are in the court

In the of learned judge opinion con- therein lands',' of and the that if the makes mines king grant the Because, says mines shall not and not? tained, pass: why royal in- shall be taken to a double same not authority, king’s grants tent; is, that and the most obvious intent should only pass' is, mines, That which are to a common common grantable person. what what is not draw after it can shall be separated, grant is a crown to a common person, special royalty,'a grantable but it, and others like are cited in : and support inheritance yet rule, that in passes of pretended governmental nothing grants by implication.

What the consideration case in the at bar? is grant furnish In themselves evidence' of its merit. highest grantors act of the West Boston proprietors incorporating “ 1792, Whereas of River the erection Charles they say, year work of hazard and and another was a public utility, for the West diminish Boston place proposed Bridge, therefore, of for the encou-' the emoluments Charles River Bridge;- of &c. &c. enterprise,” ragement hazardous,

It for no at that time had been made to was attempt tide waters; over and so doubtful were the subscribers carry bridge pf its that a number of tllem interest it. stability, insured own; be, The hazard was all their so was it that thought great of ice, assembled on the shore to up persons upon breaking It stood, however, see it carried time and the away. against it has stood but elements; It every thing legislation. against with demonstration re- every opened processions, general considered, and was time, at the enterprise joicing; great well as of patriotism,-as utility. construction,

This charter is to receive a and the words of judicial are to be to a What analysis. do grant subjected relations judicial the words raise? What are what rights extinguished; required; what covenants are implied? Peck, 6 case Fletcher and Cranch’s Rep., executed; is case said be a contract rights grantor said

are forever and a contract never to implied extinguished; .be reassert his but none of these face appear right; things upon deed. K

You. XI.—3 SUPREME COURT. Bridge et Bridge Warren ink, which is a mode said, sympathetic writing there held to the So-words till up light. grant, be read cannot When the interpretation. be held light judicial must up unfolded, to, rise are the words rights relations.which give and the that are covenants and the required, are extinguished; clear and all become legible. implied, consider, shall the charter In-examining words. by express 1st. What granted necessary implication. What by 2d. of the charter are these words: “And be it section

In the third aforesaid, that, authority nurpose enacted further the( to be ex- money said expended proprietors reimbursing the said a toll be supporting in building pended, for the sole established benefit the said is granted hereby proprietors.” cited, reason already strong authorities

Upon a franchise, in the words vest,-absolutely, these graitees reservation; and this franchise pro- and without without condition such, as both the law of such, and protected recognised perty, then, In order, of this to make the law country. and by England affords, available, the law it must be exclusive this protection least, at to down ruinous ektent; keep competition. to some enough, of and vested Charles this is conferred upon proprietors All few words of the charter. these River Bridge, and 400 volume of Reports, the first Jervis Crampton’s (Cor- that a charter Exchequer; appears granted -2 Stamford, Anne, of in the 13th of to take right poration how much. Chief Baron Alexander toll, without saying says, “ charter, of found We think that where tolls is in a grant and the charter some to have some word meaning, operation; ought can receive construed to mean a only by that it operation being “ toll.” He If we were to decide say, reasonable goes against for, we should shake the upon contended this charter principles a vast mass which has been un- security property; enjoyed, of disturbed, for perhaps ages.” isit declared this toll for and shall continue expressly, Again, of' is the forty What period during years. meaning remain, limitation? The is to and be delivered go- vernment at the If end the term. good repair, corporation tenants at merely will' if the can franchise; eject

oANUARY TERM, Í837. " v. Warren'Bridge et them at if can pleasure; shorten term, rightfully when they and as much as .please, the limitation they please; ex- years, forty charter, pressed becomes absurd and It must, contradictory. however, be construed to mean and it can have no rea- something; that, sonable or consistent but of an absolute, unconditional meaning, grant tolls for , forty years. the maintenance

Again, to the col- bridge, annuity run charter; with the and the lege, made, tolls is express for these Here, then, two words, are two objects. im- obligations posed charter; one support which amounts, an about five thousand dollars average; and the year; to the pay two hundred and a toll college pounds year; as means, granted means, only these fulfilling obliga- tions: and yet charter, of this claim legislature, grantors exercise the these wholly means from the cor- withdrawing poration, act, indirect these tjiem leaving obligations upon in their full force. this, can, Does not thing impair obli of a contract? gation

Whence is derived the or the to do power this? Is it to be found in the charter? No. That a toll for grants abso- forty years, without condition or lutely, What, then, resérvation. is the nature of this mysterious power that can re- government, lawfully .the sume its own contracts; own grants; destroy the obli- disregard faith; gations good trample upon every principle equity justice?

In the case of Wales v. Stetson, in the 2d Mass. Chief Jus- Rep., tice Parsons We are satisfied, also says,.“ vest- rights legally ed in this or in controlled corporation, cannot destroyed, statute; unless by any for that subsequent reserved purpose in the act of legislature, incorporation.” This like the bar, one at a of and franchise; a here grant we solemn of court Massachu- judgment supreme setts, its inviolability, in the upon absence. reserved power.

In the of the East -India v. in' the case Company Sandys, reported seventh volume of Trials, 556, State it that there was this appears, condition inserted in charter, “That if'it should hereafter appear to his or successors, his that that continuance majesty, grantor thereof, in whole or in not be to his should part, profitable majesty, .successors, heirs, his realm, should, notice, or after it &c. COURT. SUPREME 444 Üridge. etal’.] Lord Chief Thus, that even opinion void.” appears, charter Jeffries, royal no feeble prerogative, Justice supporter annulled, for that purpose could unless' power repealed in it was reserved to the. grantor. far words very grant;

Thus the case at bar stands upon re- without itself, construction of act and obvious upon legal the nature which arise from sort to those implications necessary the grant. necessary

2d. What is implication? granted 56, a. Coke thus down in Litt. rule- of law is laid The general one, it impliedly “When the law doth thing-to giveth give same.” whatsoever necessary énjoying taking 317. Mines, Case Plowden’s “ is, is the and if For the ore silver king’s; law gold so and that is it, him means come digging; gives itself.” is .incidental to thing digging land; in a all minerals certain parcel If to another one grant land, and away carry dig, go upon grantee the ores. land be included: lessee of In one all shall following things thing in a trees, of lessor’s land: grantee growing

has a of way fight Finch, 45, them: &c. close, land cut come &C. Rule, 100. which the included; without of a carries all.things thing 5 234; also Saun- Coke, be had. Hobart Rep.

thing granted.cannot S'aun. case; and Williams’ Coke, 52, cáse; Lifford’s der’s tolls is, are these authorities necessary only question Upon pf as this franchise? Just necessary essential enjoyment air is-.to life. of- animal They essential support part life. itself; essence, substance arid very franchise parcel without, isWhat our franchise tolls ?

It is of certain and certain compounded obligations. rights to be a incident to are: with the corporation, powers usual seal; to such as the to have sue be- a common corporations; sued; toll waters; to maintain to demand of- over bridge navigable over &c. passing persons are: to maintain at expense five .the obligations bridge dollars -twohundred year; pounds Harvard thousand pay college -the end of deliver up a year; good repair,,at forty years. TERM, River, Warren et Bridge Bridge v. al.] [Charlea barren and value, are without fruitless: utterly as-the charter. are learned obligations oppressive lasting Yet-a “ below, inn-holder, in the court that a trader or has as says,

judge, to be of his good protected profits enjoyment inn, store or as the to be plaintiffs protected enjoyment of their or a tolls.” Is a trader’s taverner’s-license a shop fran- chise? .

Since the first last, of March the Warren has Wednesday Bridge free; been and the followed, viz., has necessary consequence entire destruction of the franchise. One more re- plaintiff’s thing mains done, to be then work will finished. The attorney will be directed to file warranto general quo against corpora- tion, for a with some of its duties; and a decree noncompliance public of forfeiture of the franchise will be obtained. This must inevitably unless it can that this happen, will continue presumed corporation to maintain the at their own for the private expense, - accommodation. The will then have into their government got two without of a possession bridges, dollar: expenditure one been for out of the fruits of the franchise of Charles having paid and -the other River obtained decree of forfeiture, for Bridge; not with its complying obligations. time,

In the mean of Charles proprietors River Bridge well look proceedings amazement. government since, But a few held a years in this property franchise, three which cost them hundred thousand dollars; and where is it “ fault, with no They now? breach of charged duty, neglect No condition. ever issued process judicial against them; and without'a cent of yet, compensation, are'stripped the mere force what transcen- property,by By legislation. can such a result be dental logic law, justified upon any-principles faith.” equity, good the various that have been forth in pretences

Among put justifica- act, of, is .this, tion to wit: that the charter o’mplained is obstrupt more than a license to waters. nothing navigable said, l’fith License, E-, In the vol. Yiner’s it is if a certain Ab.-p. limited, -it is revocable, time not done. thing, though executed is not countérmandable. License - is, law heirs to come and The same if one hunt me and my license this license me necessary writing; his park, SUPREME COURT. the license in but if license be perpetuity: something passes me once in'his this is without for no park, good writing, to-hunt VII, inheritance 11 9. Henry passes. p. fact, is a a license in

There between great diversity gi-veth fact, an and a in interest, only authority, an license giveth be.countermanded, one iá for the not but or dispensation; is. other a time is Sir William is unless certain fixed. revocable

A license Waters, Paternoster, 151; v. Taun- Taylor Webb Popham Rep. Paine, and 374,; Moore v. Inge, ton’s'Rep. Liggins his heirs, is in one and that if a license So writing it appears, not interest, If it an it is revocable: 2d. passes revocable. it is not it is not The at limited, for a time revocable. case If it is 3d. and interest; is in and is these: writing; passes bar embraces limited. a time of the Charles both River proprietors Bridge, The grant them and abso- necessary words implication, vests express franchise, and in- interest, beneficial this forty years; lutely, of certain fixed levy money terest consists according'to line course of travel Charlestown and rates, upon between Boston. line said, that a is and cannot de- uncertain, is travel be

But it it often fined; that changes, according society. exigences extent, true; is doubtless and it is also to some true,that' .And affairs, human constantly place taking from changes to incidental some- ferry may subjected injuries: that a may be suffered consequential damage one, times happens, use lawful another. The property by out .arising Canal affected in Boston some Bridge Bridge, West of Charles River but income these were between Bridge; degree termini, new into the avenues country, different opening giving amount tif were population. They large -better accommodation called for di- by public of similar franchises, exigences; grants with former intentionally interfering .grants. and apparently, rectly has somewhat diminished Ferry The revival Winnisemmit and Chelsea, but between Charlestown; it is travel through Boston and Charles- between with the ancient Boston ferry is coeval ' from the therefore, suffered, arising Whatever damage, town. or commercial arrange- from society; political or progress changes ments; tif business industry, regarded, from the course natural TERM; 1837. v. Warren. and must borne as incidental. But the .merely voluntary, direct, and fatal action of own former government grant, hot incidental, and does not cases belong consequential damage. facts the case at bar are it from all peculiar, distinguish other cases of a similar nature. two abutments bridges are two hundred feet the Charlestown side; sixty apart to them avenues meet Charlestown at the distance Square, about four hundred from the abutments. feet the Boston side, On. the abutments of the two are about nine feet hundred bridges apart, and the avenues to in Boston, them meet at the distance of about fourteen feet. hundred distance Charlestown Square all the business of Boston, over these is within -a parts few bridges, feet same; so that the same accommodation afforded both i§ Now, as all the roads and from bridges. Charlestown, leading:’into terminate, or cross each it follows, that all square, travel now over the Warrén would, with goes equal' convenience, have over Charles River gone Bridge; had.been- avenue between Boston and The new only Charlestown.. bridge has connected no new old; line of with it travel has not short- ened the distance between the termini, two nor other addi- given any accommodation, tional than two parallel over one. Of bridges give two some necessity bridges, formed from judgment foot this fact: about three thousand over passed -passengers Charles in one and about River seven hundred and day, fifty,ve- all record; hicle's of as about descriptions, appears eighty foot thousand and four thousand vehicles over passengers, go London day. bridge every travel, therefore, from to Boston is a unit; Charlestown it is

now, been, has must .be, same always always line of therefore; travel. The of the Warren which, while it grant Bridge, a.toll, diverted two-thirds this travel from- Charles bridgé, become free, River has since.it Bridge, whole;,is a diverts the same It is, its effect and in operation, franchise.. entire destruction of held title; older property, resumption of a this has declared a contract to-be grant, executed; Court which the are and a grantor extinguished, foreve.r on his covenant to reassert his never But in implied part rights. bar, ’caseat has. over this grántor his"right franchise; reasserted ánd thus-impaired contract. his the'obligation below, A learned in court the ex- judge commenting upon SUPREME COURT. Bridge Warren Bridge River al.]. of the franchise of remarks, tent that it is bridge; either confined words, or extent; has no local planks, else, or extends old to the distance of some Cambridge, three or four miles. remarkable, if is a little

Now, of the Charles proprietors now, do never have claimed any such local Bridge, claimed, have ever or now they claim, extent: an exclusive do. Yet, and Boston. Charlestown order to m'ake between right odious, it is over the whole river. represented claim extending the, at his learned conclusion that the ex; does get But how judge . or franchise either Not every thing surely nothing?, tent.of have uniformly the declarations proprietors, from com- stated; books of manner not from the their limited right them, rule is stated uniformity for in law, great mon authorities, the whole current of runs through precision, time. rule of the common law to the the sixth present Henry is erected so an ex- near market, ferry, rival if a is, custom, its essentially draw away impair as to one isting its income or near in a to diminish profits; materially value, &c. &c., as to ruinous sense, so near competition; produce positive a nuisance. be deemed it shall and' where the boundaries asked, what these.rights?

But it on the cannot the' precise put finger spot because And ends and have no begins, they where river, private right not, law does the common furnish a because unhappily, all: at extent of franchise, the exact local to measure of óompasses pair whole river, does not cover the at all: because it has no extent width of bridge. is confined deal with nuisances on law, do learned judges Does How to a house one establish may near this way? dwelling land Does the common law or unwholesotne manufactory? noisome a nuisance; deemed distance, and here it shall be a say, the measure- And how is to- be determined it shall not? it whether it there and - is not, -evidence, but the fact? It a matter of nuisance be a "Is like other fact. filled the'atmosphere proved is and ? the value of -the effluvia Are coirifort and noxious dwelling awith it nuisance, Then it is a this establishment? whether impaired bar; So in the -it of rods or hálf case.at distance ten the' at a.-mile.' whether distance,.that is to determine than the a fact rather Does value is a nuisance or not. it impair greatly bridge rival JANUARY TERM, 1837. Bridge v. Bridge River Does it diminish the elder franchise? essentially

of Does profits? ruin These are all it? matters facts wholly evidence; tobé and courts and exercise of a sound discretion* proved; juries, all the facts and circumstances of each case, will particular give reasonable to the a in these franchises, protection property by giving them reasonable extent.

But it is when the charter Charles River was argued, Bridge for in the 1792, notice to all extended was thirty years, year given world act, that the had no exclusive propriétors legislative and that inasmuch took their charter, extended right; notice, it is now too late set right. up act of the West Boston proprietors incorporating Bridge, March, 1792; on was the 9th of and in the 8th of that section passed act, enacted, Charles shall River proprietors Bridge and, to be a for continue and body corporation politic, during to be from the term that said Charles seventy computed day years, River completed opened Bridge subject passengers, in the act, all the conditions entitled regulations prescribed for the act, certain persons purpose incorporating building river, Charlestown, over Charles between Boston bridge term, forty years, during during same supporting term the said of Charles of seventy years, proprietors aforesaid shall, and continue to collect and- receive all'the may Bridge River the aforesaid act for their use. and There benefit.” toll granted shall the additional proprietors then proviso, relinquish- and shall continue to the Lord?s day, on pay annuity toll &c. &c. college, of the charter of Charles River waS made, extension

This forth preamble grant. as set Charles Whereas, the erection River was work of and another for the utility, place proposed Hazard diminish the emoluments Boston Charles Bridge, West River therefore, &c. Bridge, to, is contained of a notice referred report committee, the West Boston had been the petition for referred

to whom Bridge; of Charles and is in these remonstrance River Bridge, words: “ further that after The -committee report; attending memorial Charles them fully proprietors Bridge, hearing that there is to maim opinion, ground subject, act tain incorporating proprietors purpose L XI.—3 Yol. SUPREME COURT. Bridge River v. Warren Bridge et [Charles al-.] to'Boston, Charlestown an bridge exclusive

building - to build over the waters that river.” right of committee; is the Such it to have opinion been supposing it would then be the by. legislature, that adopted opinion more.' How then can this affect or con body, nothing opinion under, held trol them a former .proprietors, rights If, an instead it had been a decla being opinion merely, grant? still, all the act; vested in the char rights by their ratory proprietors, in effect; would have remained full force arid 1785, ter first, a continuance of the with all its of 1792 merely rights, charter all As this declaration of the &c.; obligations. and subject &c. 1792, of the act of all the makes part 1785, to them belonged equally proprietors .to belonged- . itself, had ex a déclaratión been inserted the act If súch 1792 and the act had the term been seventy years, accepted; tending bound it. have-been might proprietors mistaken, - have import meaning opinion Büt but claim made is entirely deny any plaintiffs, does It It does not an it. deny with proprietors consistent ; between Boston and but does deny right exclusive Charlestown . whole over the There was añ river exclusive right committee for another not from Charles- before bridge.; petition Boston;'and but-from Boston, committee Cambridge town remonstrants, does not extend to Cam exclusive your right to the. say miles; of two it is hot an “exclusive to build distance inasmuch, river;” as the waters Charles' but proposed over emoluments, we recommend extension of your affect would was seen cause a proposed bridge your charter. and it was Charles River on that damage Bridge; consequential ' proprietors appealed equity legislature; ground alone, declare, on that that .the expressly ground an extension of their charter thirty years. granted .legislature ferries, cases, an exclusive main- fully the following Tunstal, 162; Frank, Hardres’ v. Churchman v. Rep. Tripp tained. Abr. 683-. The 666; Chadwick’s 2 Dane’s case Term Rep. Field, decided in the recently exchequer, is-reported v. Huzzey Roscoe, 432; & also in-the Mason 13th Crampton, 2d vol. this-case, Lord reviews the Journal, Law In. Abinger No. ear-; franchise; doctrine in relation to this beginning whole cases, and the principles necessary liest -confirming TEÉM, 1837. market, bar. The case case at Islington support Examiner; in No. of in the 131st Legal recently reported a of is series nine given upon questions the opiniocUnf-the judges of market, to them house of a put franchise touching in all the doctrines advanced and confirms lords; support.of reviews shows, most what this,case; and claim in conclusively, the plaintiffs’ there, time. law is essen- is at this the law of present England to was three centuries relation now, what it and truly, ago, tially that this can be shown law has franchises; and it these unless statute, it is now or modified cases; been overruled by adjudged law this of country. of of has in the course this controversy Much been said monopo- fruitful themes lies, and exclusive privileges; and.these name,, but'a bad to what is declamation. And monopoly, given has been for a bad Such the use ef certainly purpose. thing is in its case. It worth definition.- word application on one, is an conferred or A then monopoly privilege exclusive árticle; or traffic some such as to trade particular buy- company, coffee, cotton, or or ‘in of a common selling sugar derogation ing man has a natural and sell these articles; Every buy, right. right to all, one, is common is conferred but when it this-right as is It then, is a odious. is justly monopoly, something common of all, out possession- carved enjoyment all, to "one. But the given exclusively equally belonging . a franchise is not a for it is hot or monopoly, part parcel grant over, has a No man build a a common a navi- right. river, or without All set state. ferry, authority up gable franchises, or these whether are the public property public rights, of. state. the' They property belong peculiar sovereign, are or in no when individuals are corporations, they granted not in because are common sense monopolies; derogation right. said,

But it is that the has a in its discretion legislature ferries, roads,'whenever and rail con- public bridges, turnpikes, it; and that this convenience or requires venience necessity, they are I state the exclusive as proposition broadly judges. ever down, been laid I no wish to avoid its because have consi- just deration. is

It then, admitted has a legislature general authority over these but limited subjects; nevertheless authority. COURT, SUPREME like that of the British but not-omnipotent parliament, subject- restraints and ed to limitations. state many do can A has done and this Court has their corrected wrong, wrong; and restored the errors, which had, course, inadvertently, or taken been invaded away. their constitutions of

The people im- forming government have exercise restraints many upon posed legislative power. the. constitutions, inserted certain many fundamen- They tal intended to limit, -.were withdraw principles,..which wholly them cannot legislature. They abridge ex liberty speech press; pass laws; post suspend facto writ habeas or take corpus; private use, property without compensation.

These limitations restraints the exercise' of legislative Massachusetts, its own constitution. imposed, by power, There .are restraints by constitution of imposed the United one States all and restraint, state a upon legislation; very important of of which, has this opinion disregard plaintiffs, brought Court; before is, this that no cause state shall law impairing pass of contracts. The conferred on this Court obligation power of States, the constitution of United in certain spe- controlling, cases, state cific and intended iñ legislation, given, was give, “ Court, of a bill each language people of of of this state.” The exerbise ultimate consti- conservative power, one of the of tutes functions -this men Court. wise highest constitution, framed this who clearly discerned in multiform ope- of human interests, and rations for passions balm, some necessity and in Court, exhi- power; controlling conferring they bited 'the most wisdom, human profound guided experience. is restrained and of limited legislative power principles natural justice. the case óf Bull,

In Dallas’ Calder Chase Rep., Judge says, “There are certain vital in our free principles republican govern- ments,-which will determine and overrule an apparent flagrant of abuse as to authorize manifest legislative power; by posi- injustice law; or to take tive that for or away security personal liberty pri- vate whereof was property, protection established. government An act of law, for I cannot call it a legislature, contrary first a of the social cannot be great considered principles compact, rightful legislative, authority. obligation exercise law. TERM, Bridge v. al.]. and on established compact, republican express governments nature of the on which be determined by must principles; I. instances what A few .sufficient explain it is will'be founded. action, for an innocent or, A law that citizen mean. punishes done, law; words, violation which'when existing or a law contracts; lawful a law that destroys impairs private own or a law that takes case; in his makes a man a property judge it is all reason it B: from A. justice, for against gives therefore can- to entrust a such power; people it. The the nature; have done not be genius, they presumed, to a our amount and the state spirit governments, prohibition acts of law and reason and'the general principles legislation; forbid, and them: may permit, punish; forbid the legislature enjoin, crimes, rules of and establish conduct declare new may they cases; command what' is in future may their citizens they right, innocence cannot into what change prohibit but. wrong; or crime; as a innocence violate guilt, punish lawful, contract, antecedent private private pro- perty.” Peck, 6 Craneh’s Rep. case Flecher v. Court say: contract;

When, then, when a law is in its nature a absolute rights contract; that law cannot vested under repeal divest if them, the act of those legitimate, rights; ren- annulling so the case of individual in dered every power applicable community. (cid:127) be well doubted whether the nature and of may society does not limits to the some power; prescribe legislative government found, to be if where are prescribed, property individual, of an seized without fairly honestly acquired, compensation. all

To the is legislative power butthe.qués- legislature, granted; tion, of of whether the act an individual to' transferring property the nature of well public, worthy legislative power, of serious reflection. and of the Warren effect

Regarding practical operation charter, and of the the case at bar rights property plaintiffs; Dallas, comes within the of the cited from remarks and clearly scope fact, Cranch. In of it takes plaintiffs, and point property it to act is, an of gives^ confiscation. public. operation, It violates all those of distinctions of and wrong, justice SUPREME COURT. Bridge v. Warren et'al.] which at law, lie the foundation of all and of all injustice, govern- if men deal ment; and were to with' each other as act deals our with the frame-work of civil would be very, plaintiffs, polity down; all confidence would broken be destroyed; sense of the' would be lost. security persons property restrained its own Again, legislative power by limited fdrmer In Crown, he Chitty’s grants. Prerogatives page “ It is a1 own law, bound his says: principle king his and cannot his therefore, mere ancestors’'grants; prerogative, vested immunities, take The same away rights, privileges.” identical franchise has been to one, cannot be granted granted anqther. is much a franchise grant grant property lan,d; as a and if of a franchise can be resumed or grant grant annulled, can a of land. so Both are portions- grant public both in the grantees interest; beneficial property; property, .vest both, and in is a contract executed. suit has

Since this been case very important pending, in the court in the decided state of supreme appeals Maryland. “ of the Canal It is the case The Rail Road Company Company;” in the Gill and is vol. of and Johnson’s reported 4th Reports. The Canal was the of the route Company’s prior Surveys grant. these internal works had been made; for each great so near at a found that each other they approached called place was not Rocks, that there room Point both between the enough these surveys, Rail Com- rocks Road making river. had located their company; route; had preceded pany and condemned land for their necessary purpose; purchased .the was arrested the instance of when progress injunction,'at found it who to be Company, impracticable C.anal construct rail was, side of the road. And the their canal question court, had the and the in a elaborate very de- prior right; opinion, in favou” case L cided it This before the prior grant. court, discussed and points determined many case, are in. to be decided in this. important points among all these distinctions, Within there was, and will be always ample for the room convenience and accommo- provide every dation that And this can be exigencies done require. without former without resuming private property grants; taking compensation.

They might plaintiffs’ exercise seized franchise TERM, Bridge Bridge et River v. Warren [Charles state, domain. eminent All the in the under whatever property held, use; be but be thus taken for title may may public condition it. a reasonable simple compensation making however, did of this not exercise proceed legislature, high to for the but took accommodation; provide public they it. without property paying

Or as offer set forth they plaintiffs, might accepted in their memorial on of the. the twentieth record. vote of By page offered, if the would proprietors, corporation legislature give them to make the avenues to necessary authority, bridge width; draw, construct circular so that given passengers should not be vessels were make delayed,'when through; passing itself, convenient; as much wider should deemed construct a and even to build a new thus sub- spurr bridge, bridge: the whole matter to the mitting judgment legislature, themselves to do all and should whatsoever authorize pledging they do, direct them to for the accommodation. public providing offer,was declined, This admitted, reasons and it is given; it, .were bound to reasons absolutely accept give refusal; for their but isit to such inferences as the certainly open will, facts their case warrant. it is But had found repeated, again again, fact, that the convenience another avenue public required to' from Charlestown Boston. -.What then? Does the of this finding fact all sorts Is it excuse or justify any legislation? franchise; for the for the annihilation of resumption justification amount of without a vast fact property compensation? but the basis of affords no excuse for made un- legislation, unjust constitutional legislation. market, cited, case before

In the the house of Islington fact, found the that- convenience lords required enlarge- ,a market, the old or the ment of establishmeilt of one. new A bill market, for a new lords, the house of instead of pending act, a seiics pass thought proper püt proceeding of'ques- matter, tions nine They relating judges. inquired was the what law; what could this mar- judges touching do. ket, with the. of others? The consistently existing rights ^answers law, to be there declared given-at large; law had been when the England, to the plaintiffs’ applied SUPREME COURT. al.} the Warren was it would and never act establishing Bridge pending, could never have passed. be built, to authorize

But the legislature proceeded bridge which toll, the whole was to paid. out expense and granted re- built, was and for out of the tolls paid Accordingly, bridge done, the ceased. That functions ceived. being legislature their avenue, it; another there had and and paid provided They ended. to the public duty convenience, or of necessity, of common it matter public

Was tolls, after for the' out bridge that government, paying into the 'treasury, thousand dollars a year public twenty should put bold' man it to the Is is the same public? thing, give or act With the same this upon right, vindicate ground? enough charter, have repealed passed plaintiffs’ might government to be the tolls into paid public'treasury. act requiring does not the franchise has destroyed, in which way. indirect can- be done for what cannot lawfully directly, alter principle; done not be indirectly. re- was, basis of the convenience

The sole public proceeding on this and it was advocates another justified quired moment that the therefore, alone: the government began ground tolls, character, it lost its and assumed its coffers fill original and It then became matter of one. speculation new profit, convenience necessity. not failed to their have all, the entirely accomplish After government to wit: some further accommodation lawful purpose, only providing moment, travel; is, for there but one travelled at this for the public Since the Warren between Boston Charlestown. Bridge avenue is now free, which, all the travfel over that we made was bridge; for the twelve and the amount the increase of travel last years, add found from the other will be that the travel over drawn bridges,, double what it was one ever over Charles River nearly this Yet the inconveniences and Charles over dangers passing Bridge. so River twelve were years Bridge, ago, great, legislature, tender out of for the another safety people, regard granted twice as travel over Now, there much nearly avenue. though avenue, new is’ inconvenience no complaint experienced; is 'made. which the have rested ground always upon plaintiffs

cause, this; duties that their and their were comménsu- rights

n TERM, 457 v. claimed an exclusive between rate; Charles- always Boston; stood to fulfil always town and ready imposed. is the law Such England obligations franchises, to these stated in the cases is.clearly regard Field, Frank, ferries;, v. cited in relation v. Huzzy already Tripp Lewis, Prince 5 Barn. the cases of v. & Cres. Moselyv. relation,to & Barn. Cres. markets. The memorial of Walker, 7 duties; founded upon reciprocity plaintiffs cases all the that' the extent of English go principle, measure of the other. is the one, into I do charter go argument prove plaintiffs’ contract; but' refer the Court to the cases. merely ais following lb, Peck, Cranch, Wilson, S7; 164; New Flecher v. Jersey 49; 9 Cranch, 84; 8 lb. lb. 50. 516; Wheat. . Taylor, Terret v. said, that if it is has taken But Massachusetts for use, without the public remedy property compensation; private of state. It is the case here the the that is in courts possible, sup- it is not the at bar. case Whatever happen; may although posed, of be the abuses be whatever legislative power; injuries may still, the if the obli- persons inflicted upon rights of-property; is not the of a contract some one of impaired, pro- specific gation States, of the constitution the United restraints .of imposing visions states, violated; the is has no not this Court upon and prohibitions 2 Pet. 412, jurisdiction; held is in the taken,

If under from the state exer- property grant is eminent'domain, for of the provision compensation always cise arise; the act:' and in such no can as cases made questions But, if is for. taken by authority, paid paramount property it does taken, is no is held, thus compensation provided, property be a is declared to Court because this this jurisdiction; give be are said to forever" executed; grantor contract the. "a them. When and covenant to reassert implied'never extinguished, held, thus is or destroyed this resumed therefore, by property cove- contract is impaired, implied . obligation grantor; and the Court attaches. broken, of'this is jurisdiction nant ' to this mat- bar, is the in relation case at Now what aspect decision of do the for the What issues ter? .pleadings present in that the act is, bill of.12th Court? allegation plaintiffs States; United March, is constitution 1828, repugnant .the The defendants it of a contract. impairs because obligations XI.—3 M Yol. SUPREME COURT: .[Charles this; and thus the issue is formed

their answer deny only this Court can found a decree. The no where affirm plaintiffs state, that has been taken for use, private property public by domain; the exercise do the eminent nor defendants allege it, below; nor do the court Chief Justice Parker contrary, be that there will a decree says, plai’n- Pickering, against tiffs, order avail secured to themselves they may that the constitution of a laws, them revision Supreme is that Court of the United where it States; ques- highly proper tion, does, I it think the constitution depending, mainly upon be The decree States, the United should decided.” ultimately asserts, that taken the court below also private property for use. public itself, did act not is also legislature apparent of the eminent the franchise virtue to seize plaintiffs

intend in the act for for made no domain; compensation. provision all cases that in where Massachusetts, the settled law Now, use, for for is taken provision compensation public private property bar, the act itself. But the case at made in appeárs must be intention avoided avowed carefully open legislature constitution, by confided to them by power, high exerting.this real estate for in cases where only compensation, provision making that where property The constitution says, taken. should made; shall be use, legislature compensation taken public shall taken, act, where real estate compensation, in this say estate, real is not Now this franchise plaintiffs made. this exclusion property, word isit property; although did intend, and did not manifest, most it is They use. the franchise as fact, private property seize to make the of question, on the grant ground proceeded that it on the is. denied this right ground compensation; without and thus obligation a former impairs or destroys grant, resumes of one then, and the This, issue, only presents a contract. of has Court this jurisdiction. which of an incident that eminent domain is

It is admitted admitted, that is And it also cannot alienated. sovereignty, the exercise of the is liable to citizens the state property held, it title it is matter what No authority. by this paramount this exercise is all to be taken for use. The alike subject state in the however, is restricted .'an by express provision power, TERM, 459 1837. v. Warren Bridge (cid:127)[Charles et al.] (cid:127)constitution; that shall be made. This compensation fundamental in the constitution of States, inserted the United law is well inas states; and the show many that how following,cases fully been has and acted this principle recognised by upon, judicial 304; 2 Dali. 9 2 Cranch,'43; country; 655; Pet. 1 tribunals Commentaries, 425; Johnson’s Cases, Kent’s Chancery 162; 468; 7 Mass. Mass. Rep. Rep. doctrine sometimes consequential referred into damages, can below,

the court have no at application case bar: except on the that the Warren does not ground impair does, former if it that the plaintiffs are not grant; entitled to is it assumed that thé compensation. making grant, legisla its own; ture and if the merely granted what plaintiffs have damnum, of a lawful exercise is suffered it a case of power, the law no which This absque injuria, gives remedy. argu ment, as in the the case court below a applied learned judge, the whole matter in and need assumes dispute, be fur therefore I ask, but would ther whether case pursued;» merely can be this has found, to which doctrine applied justification, has been not consequential incidental, which injury partial but total. has been often repeated, have received more plaintiffs dollars, a million of' course of about

than it fifty years; and is a sufficient consideration this and main- urged, building off injustice done taining bridge; cutting twenty learned of the term. Even a the court below, years judge says, “ measure, be in the consideration should some And adequate.” valid, consideration, meritorious in some measure not good, not,-at contract, Was it the time of the fully adequate? adequate? now, rescind it it.has can one of because parties And turned out than was either? anticipated by be more beneficial , I will not further the patience trespass upon Court committee that an is not inquiry by showing executed, writ of ad damnum to a is a quod equivalent ju shown, that, I because have evén such a already dicial process; pro is not conclusive cess parties. England, it were would settle but therefore, If, equivalent, nothing: it, and is not further notice. worthy no resemblance March, act of 12th of validity Upon must final now decide- pronounce Court have judgment, SUPREME COURT. Bridge Bridge v. Warren et River has been the title to. a vast amount of This held property. property state, under a from for half it has been nearly century: market, sold in and under the of the open eye bought government:' taken in (cid:127)it has been debts and distributed in payment of legacies: form, estates, in the settlement of notice, without even every title that the was bad. It has been for suspicion, many years sought safe investment, trustees, as a charitable profitable by guardians, institutions, and such other as are to entrust their persons obliged of others, in confi- whom property they management place And these dence. owners of this have yet who purchased, property, it, value, or taken at its and who not received market more n than the of their mo- are as odious legal'interest money; represented enormous nopolists, exacting has profits upon capital to them stockholders are again. over over repaid original has dead; or, if of them are still all property long living, out of' hands: but if were now since living, passed nor more, so of this would not holders property, gained, at that much, -their as those who real estate purchase, pe- bought it till time. riod, and kept present no owners have however, the finds that these At length, grantor to this and without or'inquiry, title property; judicial process good whole use confiscates public. Court, to be

But the established'by judgment principles of dollars, millions will decide the title to more than ten decide alone. If that shall MassaQhusetts in the state judgment Massachusetts the constitutional power for other and where is what the security act question; pass four have been More than millions of dollars property? corporate charters rail-roads, ^Boston, under three leading invested other, title to is no these the legislature. franchises granted be means better, may than that saíne plaintiffs. ends; and who can say same accomplish employed be will follow? may again ap- results Popular prejudice same excited' declamations to; passions passionate popular pealed and odious exclusive money, monopolies: tribute privileges, against combined, and under skilful these, management, brought all with a resistless and crushing chartered bear rights, That we to be told these dangers imaginary? Are power! confided interests may safely justice these equity That paternal just regard legislature? TERM, 1837. v. Warren ah] [Charles. faith, will of afford a always the good obligations property, I answer all injustice? oppression reasonable protection against charter of Charles sentiments, the River up by holding such fine dollars; of not half a million now worth the worth once Bridge; isit written upon. parchment and confidence in as for, bodies

I as much legislative have respect both, but I am that will warrant: taught by reason and experience I to the of look the private not safest rights. aré guardians and, all, the law: above to the su- administration of law; Court, in this for of law, as it resides protection premacy encroachment, of by against persons and,property; of So the states. Court shallcon- inadvertent legislation long as of functions, exercise this most all its tinue to salutary highest will be within constitu- country the whole kept legislation - confidence; of will be action. result tional sphere general security. general Court, that,

I thus have virtue of an satisfy attempted by or a at law, surrender ancient ferry, equity, assignment 1785, act of a franchise or béneficial plaintiffs, incorporating reservation, and without condition vested absolutely, interest limited; time the- so them franchise vested recog- both nised as law protected property, property, that, of this order to make this country; protection England available, must, extent, some local at sufficient, necessity, or, in words, down ruinous that it least, keep competition; and Boston. That the must be exclusive between Charlestown grants the charter of the of 1785 constituting plaintiffs, being valid, considerations, and meritorious on- made adequate good, a liberal construction that these grants; entitled to grantees; decisions this Court, constitute a contract: according 12th, 1828, the act March Warren Cor- establishing Bridge 1contract, of this .impairs poration, obligation by resuming franchise, and of this without com- divesting plaintiffs property, and that Court, is in this only remedy under the pensation: of the United States. constitution for the Gréenleaf, defendants,

Mr.' argued, That 1st situation the cause present presented insuperable decree in Warren favour objections plaintiffs. which is the has now become the. complaint, Bridge, subject pro- SUPREME COURT. et al.J of the commonwealth, perty terms of the- charter. original The defendants were merely authorized to themselves, indemnify for the cost the erection tolls for bridge, collecting six period years -exceeding commencement. They afterwards, were constituted the agents commonwealth, by statutes, tolls for its receive use two 'special years but those longer; statutes expired, become free. having of the plaintiffs’ are, bill general objects first; to obtain reim- bursement of the tolls already diverted from their and re- and, ceived ac the Warren Bridge; secondly, the use of prevent as a latter, way. decision of this cause, this Court exercise no will than was larger jurisdiction the su- possessed by Massachusetts; court and will preme render judicial no other de- than been rendered cree tribunal. It is ought well of state, known that the in the people of equity powers, reluctance; manifested have great decided for the preference remedies; law common- to the- intending preserve jurisdiction law, common all cases “in where that is of afford- capable relief;” substantial 6 Pick. adequate for the ing Now, 397. “ of tolls, diversion there is mere plain, adequate, complete law,” at an action of the case; and, by therefore, remedy which courts rules state themselves, to prescribed is none The there equity. on which this only ground part be sustained in could claim would be equity, the defend- by charging it as trustees. But has been in Massachusetts, ants held of the supreme to extend cases powers judicial only court equity 6 statute; Pick. and that no trusts designated 395; expressly there, those deeds, under except .were' cognizable arising declared are v. expressly Dwight Pomeroy, Mass. writing; 17 Rantoul, 12 233; v. Pick. 327; Safford v. Given Green!. Simpson, 5 303. therefore,

The only which the Court can deal with the ground, is,-that tolls, for the having possession bill purpose injunc- its it extend tion, decree over the incidental may equities But this Court can make decree which can cause. relieve the before, because there are no it parties capable complainants, obey- The become injunction. ing having property state, these defendants neither nor to prevent as a of it way. use commonwealth whose only party are be affected whatever decree be made in rights regard and no can one not bridge; injunction issued-against party TERM,. 1837. 463 v. Fellows, 4 Johns. 25. the suit: Fellows v. Ch. doc- general is, that all who are relief, trine are ma- necessary equity matter, must be interested terially subject joined; Sangosa 2 170; Ca. Indio Abr. The East Davoue v. Company, Eq. Fanning, true, 2 Mad.'Ch. It is 199; 4 John. Ch. that the interest of is no not valid where the Court can persons, parties, objection those decree, between before it, make without already affecting in; aré not those who called Mallow v. 12 Wh. Hinde, rights 1 Arredondo, Paine, 410. It is 193; .true, Ward v. also that if the are without interest Court, absent parties jurisdiction will, cases, discretion, in some without them ; proceed pro- are defendants, vided those separable rights concluded decree; Randall, will not be West v. irrevocably 190, 196. But of such Mason, absent are in- parties, those of the connected with no decree separably parties present, will in; PI. 146; made till called Redesdale’s 133, Wiser v. And 1 Johns. Ch. 437. this Court has declared Blackley, decree not make final the. will merits á case, unless all the interests are whose essentially affected, are made persons, parties of those suit;, some are not within the persons though jurisdic- Clark, Court; Cranch, Russell v. 69, tion 98. The fact in interest is a state, that the absent makes no differ- party sovereign the Court-in Osborne v. The United States ence. language of not Bank, 9 Wheat. does a case like the but apply present;' officer to that of who collected state, only money holds, and has been notified he still over; pay con- of the exaction denied. But however that doc- stitutionality being the tolls received, if that were apply subject might trine cogniza- in the ble court of supreme Massachusetts; it equity judicial the itself,, to which is real cannot not bridge apply property, belong- in- to these is, sense, and in no in the of equity plaintiffs; hands ing To retain here, the defendants. to the sue state, and jurisdiction to effect the virtually constitutional repeal judicial provision Court, decree, The its effect so only much subject. can as nuisance of; is, and this complained constitutes.the in existence its but the present use of it position, Such a these it execute; as decree cannot way. defendants therefore can afford the no-reliefi plaintiffs claim extended to.be ferry, plaintiffs assignees, to the control no than was farther landing places, subject COURT. SUPREME 464 et v. .Warren Massachusetts, settlement, from its first state. The policy within its control; to retain ferries ferrymen been all own having tolls, but a to take will. The well license public nothing during and sentiments were known strongly principles pilgrims, Hence, to in as early shape-of- monopoly. every thing opposed Brown, had Boston 1635, after a set between as ferry up .been termed, another 'but Charlestown, as it is between ferry, to was ordered to be set be same up; kept by landing places, in ; in the estimation resident Boston clearly person, showing, had no court, óf the exclusive existing ferryman general all 1641, 'there. the limits of were defined by ferries expressly statute, as from where the place ferry granted, extending where, in boats use to to land.:” any ferry place, ferry “ óf a constitutional the same act was in the year, an nature passed, declaration, should allowed be monopolies granted, them, with With this declaration before such colony. principles rent, in'view, to the ferry confirmed legislature, 1641, but not to to acts repeal permit meaning college; .the tolls, at the be collected receive might ferry, college subject further order of On the same suc- principles, legislature. 3; 1; 13 M; in W. & 8 W. 4 Geo. statutes were cessive passed, ferries: 1; 2; this, and 33 Geo. and other and autho- Geo. regulating whatever, ferries, the court of sessions to set up any place rizing then, If, true, discretion. that the and situation history its at to, resorted in order to its a state expound legislative Bowden, (cid:127)intentions, 115; as was said Preston v. Wheat. understood, to be as the law was when charters are éxpounded, 2 Inst. the intention 282; were was never the charters granted; set to be up, this ferry, legislature, permitting other, to run more, from one to the than the boats right landing thing Was its control. ferry pleasure, subject during boatmen;' who were coextensive only obligations to the other. In the one bound,-merely-to convey landing state, toll it has at plea- exercise granted bridges ancient in the sure, dvery ferry nearly, place quite, utter annihilation of the ; ferry, without commonwealth set, No claim has ever indemnity up, except ferrymen. these adverse plaintiffs; right. franchise extends far as so ferry put- argument, case: in this competition, erroneously applied down injurious 465 TERM, 1837. Briuge Bridge v. [Charles.River state, be a mere avenue, of a new it opening supposes on this only The authorities subject, apply competition. private 172; 2 Ford, Yard Saund. set without license. v. ferry, up a private 160; M'Gowen, 1 Johns. Ch. Stark v. Nott &' Gibbons, 4 v. Ogden Ch. 101. Miller, 5 Johns. Co. v. 387; M‘C. Turnpike Newburg Hart, Willes, 508. v. Blissett accommodated, case, legis- the-public being present for the conve- done its public duty providing merely

lature to do. had not the Moseley nience, plaintiffs legal B. & A. 397. v. 4 40, 55; & C. Macclesfield Walker, Pedley, 7 B. v. it never of the ferry, beeu the extent But whatever may'have 3. use'; for state, was taken by to the plaintiffs,.but passed sovereign thereby paramount rights extinguished, I. b. 4. 83. 17 Vin. Abr. .was resumed. Prerog. power, Price, 217; 5 Atto. X. c. 5'. The v. 163. Capper, Id. Prerog. King case, documents in the Downshire, lb. 269. The Gen. Marq. v. to a amounted idea the transaction 1785 pur- negative of the lolls franchise from the object college; being chase but for a reve- to be not an indemnity plaintiffs, declared only because from the It is no college, nue to purchase college. 3 Duffield, North M. & deed, is Rex v. evidence, a .wanting. legal & C. Kendall, 6 B. 703. 247; Peter S. v. was, nor the whatever plain- Neither the ferry,

4. charter, exclusive public right contained any tiffs’ thing of Charles River Bridge; a new avenue neighborhood open thus, by implication. in a passes public grant, nothing with, security is one which is essential said parted entrusted to purposes society; well being are never presumed and such good: general, government charter, legis- restricted* to be Nothing passes conveyed and essential known, corporate powers, well except lative .grant, it is contained created; express unless where a corporation Vin. Abr. 136. 21; 17 39 E. Abbott o'f words. Rex v. Reading, 2; 12 Co. Sheldon’s 2; H. Ford & 5; 4, 8 E. c. Prerog. 126; v. Stanhope v. Chancellor, &c. Hob. Walgrave, of. Cambridge 336, 337; Mines, Plowd. 243; Hob. Case Lincoln, Bp. 157; Case of Cus- Dav, 149, Baune, Case of the Royal Fishery v, Law, 100; Finch’s 171;- 2 toms, 45; Farmen, Gen. Lev. Atto. Dav. Price, 5 v. 379; Capper, 3 T. R. Winstanley, King Blankley 457; 456', Stourbridge 269; Price, 258; Gibbs, Id. Parmeter v. XI. —3 N Vol. COURT. SUPREME v„ et Bridge Bridge River a!.] [Charles 792; Canal Hustler, 2 B. & Adol. Leeds & v. Wheeley,

Canal v. Liv. Marche, 42; Elsebe, 424; 8 B. & C. Dock Co. v. La 1 B. & C. Reeves, 1 155, 163; Gall, 555;' Jackson v. The Joseph, 5 Rob. Adm. 306; Charleston, 46,47; 1 M‘Mullen Caines, 303, Zylstra 3 v. Bay, Pet. 382; Cranch, Leland, Id. 2 2 Charleston, 167; Wilkinson v. v. 9. The the Smith, 4 Wend. cases where 657; king’s Lansing of like a are all cases construction has received private grant, and not of held as of his sovereign, private property; things grants charter of his crown. gave Upon ground, plaintiffs’ right it authorized itself; them a franchise coextensive with of to erect a to take tolls pass them and might persons it; but more. over nothing be to should be void

5. If a contract that effect it would implied, of surrender want of in the to make such a authority for legislature functionary of eminent act of a domain. Every public of him an exercise entrusted'to power, merely delegated to The limits of specific delegated purpose. power people, for. constitution, not but. are be only sought, legislature, itself, ends of and of and nature power govern- objects 3 1 Cranch, 135; 387,388; Dali. society. Bay, and civil ment of the acts while the acts are only And 62. people, legislators, 133. Cranch, conferred them. Among within °6 powers upon which essential constitution and are government, powers not are;' taxation, of civil only society, well being power but defence, for the common of providing providing-safe for convenience; necessity ways convenient public are essen- use. All these public of taking'private property can without which no well community attributes tial sovereignty, con- should always the same exist; necessity requires, to be exer- are entrusted to tinue unimpaired. They legislature, it that each bartered cised, not away; indispensable that was assemble, with measure of the same power, should sovereign its In predecessors. public property, held by regard con- now it, is conceded. The limitation alienate the legislature extends for, to those only sovereign powers, tended these, essential to the constitution society. regard deemed exercise itself future act of from the legislature disabling substance, for the must be -in void; trust public its good, being, Such, to desert duty paramount people. covenant would not to erect a on. par- be a fortress covenant apprehended, TERM, DARY JAN v. Warren or, travel, not to for the sold; of land tract ways ticular provide either in a spe- the necessity, place, however particular great made, It is not that such exclusive contracts time. necessary cified under- to induce a new hazardous order men adventure in for, L. assurance positive public' good; taking remuneration, can form, always some enterprise capital be commanded. distinction acts future

The true between those legislatures be'restrained, is conceived and those which may may, but in in the kind of lie, not whether special, legislation, general Thus, a cove- the nature to be restrained. power proposed in re- is a not to erect a on a nant fortress covenant particular spot, And, void. manifestly straint yet special woujd legislation; a similar enumeration and of particular places, by description canals, in roads, to rail every part provide bridges right state, land of alienated to example individuals. might is to from is not exemption taxation exempted purpose; instead to be of a sum in purchased by payment gross, presumed all owner annual are bound to tax, of an which pay. of does not he power; only pays land portion sovereign buy up instalments. due Other once, at a debt which was off, by examples bank; not charter another to given agreement to do not essential any like. But these contracts powers abridge and the defended; The state must society. governed civil travel; must for common and to these ne- facilities people must be But the of each cessities power adequate. it of a not of similar stands necessity; bank’is wholly existence of and convenience. considerations policy limit to exercise of thus of sonm dele- powers The existence nature, is no but trust, doctrine; and their inalienable new gated Law, 6, Domat Pub. book 1, 1, familiar to tit. sec. is public jurists: et Gent. lib. 8, 5, 7; de Jure Nat. sec. 12, 16; Puffend. 14, cap. .par. 20; M. b. Att. Gen. 385; Yin. Abr. Chitty Prerog. 17 pi. Prerog. doctrine has 10 350. The same been Price, v. recognised Burridge, Presb. here, in the case of Church corporations: v. of political City 538; 5 York, New Cow. Gozler v. Wh. 593: Auburn 6 Georgetown, 1 ch. v. 278. Academy Hopk. Strong, 6. of of Warren is no of breach grant Bridge, the.charter contract with the plaintiffs, originally having accepted their charter, of eminent domain: subject paramount right COURT. SUPREME 468 Rivér al.J extension, its a distinct submis- with 1792, also, accepted having, state, of assertion, on the to an part and assent express sion by its held at discretion. All new property to make grants, individuals, jus publicum, belongs is charged branch 6; Price, One de Port. Mar. men;’Kale, cap: to be way, by legisla- is the designated publicum jus said to be one ought principal This things ture. welfare, attention government promote public employ trade; and that to be interests neglected nothing ought commodious; 9, 101,103; b. sec. Vattcl, 1, safe and ch. them render as in- 1, this, tit. 2. The is much Domat, 1,b. sec. do which, said, it inalienable, taxation; herent and needs not be expressly, reserved resides government, franchises, to or individuals corporations; property turn- 560, 561, Ferries, Bank v. Pet. 563.. Billings, Providence roads, roads, toll common are equally public rail bridges pikes, in the manner of their creation. Each act only ways; differing exercise of thus is an the easement power; location sovereign either people; by directly, paid public acquired toils. But the chest, out of common road indirectly, laying been violate charter of supposed neighbouring never tolls; nor has the may impair however establishment turnpike, road, whether charter or otherwise, ever one kind as ah of a considered another injury, contemplation, legal not to another And if of a different kind, kind. different why another of the same kind? If a be to be ren- should turnpike road, or a common rail useless why dered highway, v. The Beekman Rail Co. another Road 3 turnpike? Saratoga Paige, Co. 2 Penn. R. 45; Irvin v. Green Turnpike 466; Biddle, v. 8 This has Court 88, Wh. never so as to .S9. far hold the gone void, state as of a its statute contract.. The. violating implied cases are all cases of contract; to this express Dorránce, Vanhorne v. point 87; 6 320; Peck, Cranch, Fletcher Dali. v Wilson, 2 New v'. Jersey 164; Cranch, Terrett 9 Cranch, 43; v. Taylor, 7 Dartmouth College 518; 4 Woodward, Wh. Green Biddle, v. 1. On v. Wh. the con- has Coui't. refused trary, contract, in a case imply in similar declared, present; principle that where there is no contract, thé express remedy was in wisdom party Jackson 3 v. legislature; 289; PeU Prov. justice Lamphire, 563; 4 v. U. Bank Pet. Billings, Arredondo, States Pet. 729. TERM, 1837. Bridge et Bridge v. alone. . point not on stát. But this stands reasoning By general Massachusetts were 2, the courts of in Geo. sessions 33, expressly at their to establish in all places, authorized discretion. ferries/ make avenues, assertion of the new This is a clear public right and the water, wherever convenience may require; statute public 1785,, full force in when the received their was plaintiffs’ charter, in. be into the elements of' its It and is to taken continued exposition. was chartered; in West Boston forcé, 1792, in when 1797, in and re-enacted same was revised continued provision when the charter of Warren was force, granted. If, then, it lawful to one kind establish .avenue public side of it was lawful to establish plaintiffs’ bridge; equally any kind. If doubts could arise on this it is every any made point, clear reference transactions of 1792. The at that plaintiffs, -time, of the charter of West Boston remonstrated’against grant first, exclusive as Bridge, .their ground right; purchasers and, their charter of ferry; 1785. The secondly, by whole was referred to a committee of the before subject whom legislature, all were heard. The parties fully was, whether the great question had its at tó make new discretion, avenues legislature right, over Charles river to Boston; and whether charter plaintiffs’ gave them exclusive The committee privileges. reported strongly in favour of state, and' the existence of against exclusive in the but recommended an plaintiffs; extension of the term of continuance of charter,.on plaintiffs’ grounds as a mere and it was expediency, done. gratuity;

This extension of charter, with this together contemporaneous exposition, in the same plaintiffs accepted year; again 1802, without absurd to protest objection. suppose intended to exclusive same breath privileges, in which their existence was denied. The general principle of a legislative history statute furnishes no rule for passage exposition, admitted. Büt it to~ only applies the"exposition statutes as such. Private státutes, contracts, regarded as contracts'; expounded the res gesise, or'surrounding circumstances, committee, are to be regarded. report therefore, was .a document between the same cotemporary parties, to the same relating matter; and in a case between private subject persons, would received; or re- either interpret equity, form intentions, If agreement. the acts of parties expound

470 SUPREME COURT. River Bridge v. Bridge [Charles Warren et al.] more a solemn

much transaction like this. v. Blankley Winstanley, note; 3 T. R. v. Gape 288, Id. Handley, Hunter Rice, v. 15 279; 100; East. Savillev. Robertson, T. R. 720; Cook v. Booth, Cowp. 819, asserts same its doctrine; application though express.co- has been denied. charter, venants extended on these princi- with such declarations, ples, coupled accepted by plain- tiffs, 1802, in and -without unconditionally, On the objection. ap- for Canal 1S07, in plication plaintiffs again opposed' were heard; and the state grant, again denied their again exclu- and asserted own, sive right, avenues at its open discretion. 1826, And in a plaintiffs more ^gain, solemn manner, ac.cept- charter; ed*the renewed without denial of the asserted the state. that state,

It is an act objected annihilates the plain- tolls, tiffs’ resumed its own virtually To this grant. it replied, which forbids of one’s principle own resumption grant, does not the exercise of the eminent apply Thus, domain. a turn- road may a canal; pike appropriated, make Brad- v. Rogers 20sJohns. 735. It is further shaw, objected, though origi- been have reimbursed, nal outlays interest, from tolls; 1828, the act of has ruined the yet property in- subsequent who stockholders, made nocent have their investments at a high But all such are with notice. purchasers The statute of 33 price. notice, beforehand, fair Geo. was new public right open waters, at avenues, discretion. over This right, regard bridges -was river,- Charles asserted in expressly 1792; over was acted Middlesex subsequent canal; it was upon again 1S07, asserted'in upon the charter of the expressly granting and was acted recently ’Canal bridge; more charter rail road. Lowell If the sustained 7. plaintiffs nor any damages anticipated for, which no merely consequential, remedy provided these defendants; nor is lies case for the interference of against Court; but it is the common- only'a ground application of Massachusetts. That the defendants wealth were mere the erection of Warren was conceded in the. Bridge, agents argu- cause, clear, of this in 6 Pick. And it ment equally at law, common Which the remedy, com- plaintiffs damages act of if the the defendants were must unjustifiable, plain, action is, and not in For the trespass. gravamen TERM, .1837. been invaded; not that their has but that property directly an-act in in has been done another of which the income place, consequence Their is reduced. therefore, are damages, property strictly In to such the constitution of Mas- consequential. regard damages, 10, art. sachusetts, has received an already authoritative exposition,- 418;. in Marsh, Callender v. 1 Pick. that to those deciding damages it does not So in Shrunk Pennsylvania, v. Na- apply. Schuylkill 14 Raw. 83. And York, in New vigation Company, Serg. Varick New 4 York, v. Johns. 53. Statutes to effect enabling agents beneficial be and libe- great public object, ought benignly in rally favour those Ross, Jerome v. 7 expounded, agents. Johns. Ch. 328.. therefore, And are held not they, liable for any- from acts done under consequential and within resulting damages, 273; Russell, .terms a statute. v. 7 Greenl. Custis v. Spring Lane, 579; 3 Munf. 1 Charleston, v. Lindsay 252; Stevens v. Bay. Middlesex Canal, 468; 12 Mass. v. Bradshaw, 20 Johns. Rogers 744, 745; Governor, &c. Cast Plate Manuf. 4 Meredith, T. R.. vv 790; Sutton 1 Clarke, v. Marsh. 429; 6 Taunt. 29, P;S. 6 Pick. It is when exceed only conferred them agents' powers act, .that become trespassers. v. 2 Belknap Belknap, 519; 463; Johns. Ch. Shand Henderson, v. 2 Dow’s P. C. If the taken use, is is property state bound to public make compen- sation; does lie. If it is and-trespass consequentially impaired value, works, it is prosecution public absque da?nn.wn law; at and addresses itself to the consideration of the- injuria, only legislature.

If is here of contract, violation whether a state question constitution, law violates state is not to be raised in Court. Jackson v. 3 2S9. are cases, Pet. There it has Lamphire, been thrown out that the constitutional trial gratuitously right to cases of extends taken for jury uses. vi property public' Perige 393; Wilson, 418; 7 Mass. 1 Marsh, Callender v. Pick. Yanhorne v. Dorrance, 2 Dali. 304: But each of these cases stood on other and in was this grounds; the-point necessarily neither them In held, it has cases, this constitutional judgment.. fact, to issues course civil only right applies ordinary Wend.-85; York, criminal New v. proceedings: Livingston 8 3 Road .v. Rail Paige, Beekman Schenectady Company, Saratoga 45. No must be hold, money so far as to state gone before the contrary, title of On the paid the owner divested. SUPREME COURT 472 al.j v. Warren roads, Massachusetts, location of di- title of the‘.owner yested as soon.as the amount of com- accepted; though return cases, in certain years. pensation litigated Kentucky, - held bond is sufficient to effect a-similar Jackson private purpose. 4 Littel, Winn, 327; i't is effected Pennsylvania -in. V. action; of a whether mere state, Evans giving against n &Raw. 'Commonwealth, 441; Commonwealth v. Serg. Sheppard, 509; Penn. Bertsch v. Le- private against corporation, Coal and 130. Now the faith of 4.Raw.* Company, high Navigation state, constitution, in its is at least as valuable expressly pledged action, individual, or the state whether against itself; title of the effectur1 divest ought equally owner. is, that law principle property

The-general private use, for be taken may' public destroyed, rights private This sacrificed, whenever the it. eminent do- public good requires citizen, main extends over all the of the and to his even acquisitions Grotius de 1. Belli, &c., 2, and action. Jure ch. contracts rights 14, 3, 15; 7; 19, 7, 14, 20, Vattel, 1. c. sect. 7; and sect. c. sect. and 244; &c., 8, 5, 7; Jure 20, Puffend, sect. de Nat. I. c. sect. 1,b. ch. ¶ Quaest. 6, 2, 2, 3, 1. 3 Dali. 245. 15, 10; c. Bynkershceck, made; but that to be All these writers agree compensation ought not the com- lawful, has intimated that is unless one the'taking for. On and made or is simultaneously especially provided pensation taken, and is first property the contrary, suppose will for, as soon as when, and convenience public afterwards paid to the ef the cause for this, without urgency regard permit;'and obvious, that in a war or is taken; nor, whether in peace. .it was It, must compensation public' .exigencies, proportion large taken; Common- after the for, be. property pec.essarily provided on this I 465. Our Fisher, provisions wealth v. Penn. constitutional of the right seem more'than expréss, recognition an subject, nothing and more inserted consequence probably compensation; n arbitrary impressments made the war of" property, during in 1 305. The revolution;; 1 Tucker’s Bl. Com. app. passage part bl. this; 138, 139, obliges .Comv only amounts consti- 4. T. R. But sell, 797. and party fixes price; its where taken1, and to cases not tution directly property applies has been Válue is- so it expound- consequentially impaired; only Massachusetts, iq charters laws, ed all her by in her road general 1837. TERM, v. or canals. The roads, residue of whether bridges, ways, for public domain, touched having'bcen eminent con- the subject law, of public stitution, great principles remains among having the honour conscience force on. sovereign; imperative of law, to be tolerated in court that a is not sove- the objection will do not what in the exercise state, justice power, reign Walker, 597; 4 Mass. v. Com- Tippets may require; equity 3 Pick. 2 Dali. Andre, 224; monwealth taken the has plaintiffs If property Massachusetts public her constitution; to make use, solemnly pledged her honour ade- been If their sacrificed, rights compensation. higher quate bind her to of nations restitution. laws From equally good, not seek to without she could escape, these her forfeiting obligations Her conduct of nations. in this family matter, in this caste, great have never uniformly just. plaintiffs met dignified yet stern and attitude her, of. defiance. except uncompromising respect, She listen with advice of opinion will great if her were Court; to be honourable submitted sovereign doubtless, no tribunal arbitration, there hands she whose them. If she has violated confide would more readily any contract them reparation let decree. ample with the plaintiffs, Rut sufferers merely vicissitudes not, ordinary and they exercise her affairs, or eminent legitimate human do- here, it be suite is main, let sovereign presumed capable honour, will and that it towards, to its own pursue, just regard and liberal citizens, an policy. own enlightened tribunals, that, in the American Let it not be said- presump- is, that a state will not of law redeem tion and intendment its pledges, coercion: that further than it it is compelled by inca- judicial interests, or of true the force of its feeling pable discerning purely its most solemn and that considerations: are equitable engagements on which little than are parchment worth more written. they announced from this Let such a be place, principle easy its effects on our own foresee But demoralizing community. pro- and we shall hear its it to reverberations, claim Europe, tones of this louder than the echoes with the bitter thundering capítol; unit old taunt, world, that while the monarch of the is the dignified honour; of national monarch-multitude of nexv- representative is but incarnation very perfidy.

Yol. XI. —3 COURT. SUPREME (cid:127) Bridge v. defendants. for the Davis, also of counsel

Mr. of my diffidence and distrust unaffected case with I approach the Court. It has been enlighten to aid my employers, or capacity drawn to its has investiga- has excited ^interest; great pending; long men and emi- of many distinguished intellect tion, learning so been has thoroughly explored, The whole ground nent jurists. is,left-untouched examination, or can' is worthy'of that little not exhausted the my had subject, If others curiosity. excite industry has untiring associate into brought learned worthy own, less but a method me, my remains case, nothing under that ar- his;..and a mere revision subject than perfect rangement.

Both parties corporations.

Both the state created by legislature. river.' across

Both claim navigable rights domain the eminent therefore, claim Both, something state. time, and for that reason over- claim to be first

The plaintiffs over the an exclusive title. assert the defendants’ They ride the defendants. as well as river; affects public, which greatly moment; therefore, one of is, to' be decided grave The question and,. Massachusetts, interests because it involves great affect the convenience which may prosperity possibly, principles of other communities. densely populated stated, has

(cid:127)The plaintiffs value part property be, Their dollars. five hundred thousand here, bridge, costing into this im- dollars, about thousand forty-six grown originally to the income, from the annual yielded pro- large having portance ’ thousand dol- state, as the over twelve hundred plaintiffs prietors, to two thousand lars; share, and advanced from one hundred pounds dollars. is, with one form has the commonwealth so parted question river, over this vested plaintiffs, sovereign right exactions, these and the without continue shall inconveniences, until whatever be the accommodation,

further if the after, charter expires; plaintiffs their forever contend; their to the view ferry, n (cid:127)and after will revert the tolls ferry college, continued charter company expires. If people the commonwealth thus parted TERM, 475- Bridge Bridge River v. Warren et al.] [Charles and are tied down, thus so that corporators, new sovereign rights for accommodation; their is matter of cannot opened pro- ways found regret. for

The learned counsel seemed plaintiffs, opening Court, studious to understood the actual par- commonwealth.; and the and I interest, ties in are-the plaintiffs the case; to' this for the interest, view public objection I far involved. transcends agree, importance property therefore, side, be said to stand oh one and the public, -may plaintiffs other. On one side sacred are private property, .then rights inviolable, as but the form established; far as can be claimed in they of a to no burdensome tax fa- therefore entitled on.the public, vour strict beyond right.

Oh the are the other stands that they public, complaining wealth, tributaries to this stock of private great subjected of suitable burdensome, inconveniences more want still ¿cross' river, if this accommodations intercommunication is to be such claims of shut exclusive up; denying-that set justly lawfully up plaintiffs. can. This has been as devoid public, argument, represented selfish, avaricious, natural tyrannical. justice, Some are in this conflict of certain opinion. things We know that the sole control over navigable theirs, and Iiow far have water, was once in the public. been divested of it? must and is

If it has out of plaintiffs; public, gone Ias shall extent, and show it to what clearly: rights, show but some decided expres- do not prove, pass presumption, assent. sion has no dwelt tolls, upon, which has been earnestly

The loss it. prove tendency has no tendency increased value great it.

prove feature has been prominent The severe hardship, it. does not prove argument, with the no means inconsistent are by these matters All river; only prove therefore across the establish ways in- not that money, less are making the plaintiffs vaded. COURT. SUPREME v. Warren in the bill,

I their will then examine and allegations argu- their to establish conclusions. ments which claim by they travel, 1. between set an exclusive Boston right They up where it Charlestown, may. and come from 1828, under 2. act of which defendants aver that the They with, claim and their vested and is rights, incompatible repugnant is contract; doth and therefore void by impair obligations States. of the United constitution or

3. is restrained from revoking aver They title, where it takes own or except its pro- grant, divesting annulling it under the use; then can do for only provisions perty public that commonwealth, of the bill of requires, com- rights aver, and' further that in such cases: shall made they pensation made, for taken, their no provision compensation property 1S2S void. therefore act of under the second third The case has been chiefly argued heads. under constitution of United

The first raises question fifth article, amended That instrument provides 'States. of contracts. shall obligation law pass impairing state claim, a 1785, under which con- they call act of plaintiffs their and as tract; of 1828 that the act impairs grant, and argue, state, the act of 1828 is void. is done by legislation tenth of the bill of article under second raises a question for- the' courts Massachusetts; a very proper question rights hare writ this Massachusetts; contend, but I shall brought there, reach of error: but settled finally beyond juris- not, cannot, does constitute any part as the bill of diction, con-' 1785, therefore is no supposed of the act of part tract. another harmonize in issues do not respect.

These two entirely use, take One denies public property absolutely right cannot, in the exercise of because the State even of the plaintiffs, domain, eminent divest right property. com- use, admits the take

The other making pensation. of them. both, support examine urged

I shall arguments issues, out contend T’o these they make ferry and to the are the of the college, 1. That they grantees Boston and between Charlestown.

ANUARY TERM, 1837. v., River Bridge Warren Bridge et [Chárles 2. That the state authorized the erection 1785; act of in which there is an not to divert implied .covenant travel, new ways."

3. That two these titles in them vest a control Charles over river, to exclude hold injurious competition, to be they irre- vocable; but if revocable, then the act which authorizes thé interfe- rence must provide for all loss compensation occasioned-by diversion travel. these I shall examining positions, "are Deny of-thé grantees college,

interest'in the ferry.

2. I shall covenant or deny ex- engagement, press, them act of to claim implied, by authorizing authorized, for.a diversion of a new and damages travel by way; shall also to no can attempt .that prove body legislative perpetually alienate its in to for the sovereignty ways public regard making convenience; time, so that' a not at new when way it, demands be laid whatever, over exigency any property whether individuals, created belonging corporations legis-- lative acts, and franchise,' it be real estate or a whether unless the state has in agreed, express exempt property. terms,

3. I shall maintain, for the provide ways public, resides, of commonwealth; in the is necessity, always part and all is held to the exercise of sovereignty: that prop'erty subject which is to all right; a condition annexed title to property, whether derived from the state, or from individuals.

4. I maintain, shall property pursuance sove- taking not, itself, an act of con- obligation reign right, impairing is held tracts, it; but consistent with for-the property subject demand, is under and all the can the bill compensation right; party of rights. has

5. I shall maintain that this Court over the jurisdiction taken-for a for unless property way; question compensation .of state, and the state holds it under can show that he ex- party for that without not to take it purpose, pressly agreed providing relies on our bill for in all other .cases party compensation: Court not the tribunal instrument. and this expound rights, to examine these I am constrained most positions, maintaining elaborate Of in the véry argument open- grounds.assumed counsel; I surrender, cannot I a conviction ing though COURT. SUPREME Bridge et will be a effort, useless that all this labour for the ferry kind of can never succeed establishing equitable plaintiffs however, 'to it. the order I claim will Following, designated, legal to this first look ferry, and inquire What to the ferry?

1. rights belonged Are these 2. vested plaintiffs? do are,

3. If tend to establish the claim now set over up the waters of the river? lies in we must

This to the ancient colonial ferry -or- grant, go extent, to ascertain its and the .dinances probable intent meaning of the colonial which is to be government, them. gathered as follows:—

They to Charlestown Orders extracted out of the relating old book ferry, chamber, Ann. 1630. the council It is further ordered that who- shall first his to Mr. Gouvernour, soever name he will give to set between Charlestown, undertake Boston and up ferry at such the same time as Mr. shall shall Gouvernor begin appoint, shall for each one and one for hun- penny person, penny evety dred he shall so 65. weight goods transport. Page

1631. Edward Converse hath undertaken to set betwixt up ferry Charlestown, for Boston and which he is to have two pence and one if there be two or more. every single person, penny apiece, 80. Page

1633, Mr Richard Brown allowed the Court keep ferry oyer his house, river and is to have two against pence Charles he so and one every person transports, there single penny apiece more. Page two.or is ordered, 1635. It that there shall be a set on Boston ferry up Hill, Windmill to side, men to Charlestown and transport Win- nesimet, the same rates that the men at and ferry Charlestown Winnesimet men to Boston. 150. transport Page

1637. between Boston and ferry is referred to Charlestown Treasurer, and let, to at Governor annum, forty pounds per begin- (cid:127) month, first tenth and from thence for three ning years. 204. Page

1638. Edward was Converse admonished to be more appearing, careful and man boats, to two one to be ferry, on enjoined side, and the other on the othet side, one the wind were so .except were forced to four men to man one and they boat, high put TERM, 1837. [Cha/les serve, one to he Mr. then boat to only Rawson’s enjoined pay and 223. fine, so. discharged. Page Treasurer, Mr. Mr. Samuel Shepherd 1640. and’ Lieut. Sprague, to between and have let Boston ferry Charlestown, to cause, whom see when the time of Edward Converse is ex- at 27G. their discretion. pired, Page 1640. between Boston Charlestown is ferry granted college. Page ' Such are the or acts ordinances court of assistants, principal and the court, in and I shall ferry; ask general regard Court to of these the intent functionaries from this .re- gather cord, history. cotemporaneous under the I colony, illus- distinguished, may say, over; trious John came and not satisfied Winthrop, governor, being with Salem, located, where their had they came predecessors up the head of now the harbour of to what is Boston. bay, Here Charlestown, found the formed Charles peninsula river on west, south-west, river Mystic north-east, into the harbour from the north-west- to the south-east; projecting and the it from Boston towards peninsula projecting south- north-east,, west and formed Charles river on the north west; basin, into a above point large spreads discharg- itself between’ these or harbour of Boston, ing peninsulas bay friends, oh the ether side. with his these two Winthrop, occupied and in was under Boston, him, established the colonial peninsulas; which, truth, was only government company, company so far as adventurers trade the charter went. Out speculation', humble the commonwealth, I and, sprung beginning almost itself. this federal say, might government Thus situated, intercommunication between these two places is, indispensable; and hence it that while smokes of a few pnly cabins ascended from the where and a log city spot great large town since risen came of a thus un- up, ferry early subject der consideration. And in construction these or- giving simple dinances, is a fair the colonists whether were inquiry, providing to that end; means present suitably emergencies, adapted were, as the plaintiffs contend, exclusive perpetual making grant river, travel time to come. over Charles act, The first one, but 1630, makes no proposes “ set ferry up.” SUPREME COURT. v. Warren et al.] [Charlea 1631, was set Converse, a and the toll ferry úp In Edward es- ' tablished. . 1633, Richard Brown allowed to a In Charles over keep ferry house, &c. his Here is the first of a river, evidence specific ágáinst house;” the river his is, that what call location, against .they “over river, bank, bank was overor across to to opposite ferry*, house; a way merely. Brown’s Hill, inf.(Boston, to 1635, a was from Windmill ferry setup

In . Charlestown, from Boston to to on the and another run Chelsea-; one to as set was to already only up, belong same line or-way one Thus, of Charlestown. was upon instead Boston, ferry granted ordinances are to treated another; these perpetual grants, franchise, one ano- carries then franchise ferry word if the rather what is the words- set itp, show intended by They ther. authorized the boat from place'to running that they simply name, in his- to act, first was set any person In the giving place. then, did set it set up. up, ferry; thing .Converse up act, but This shows the individual act. limited not by public used. After location, 1833, the word iá ferry sense . called ferry: it is referred to and treasurer to let. ferry governor he had seen the or what he. testifies believed original,

Mr. Savage such, lease, a memorandum in this agreement, year, to be “ Converse, which thus: and trea- begins governour signed court, did demise to Converse, order of the Edw-ard surer, by general Charlestown, to Boston and sole-trans- between the ferry to other, cattle from one side for three of passengers porting “ demise is of between Boston and ferry Now the &c. years,” &c. -The term the sole Charlestown,” but he is transporting, n ferry, understood, is in the (for as then instrument handwriting to travel did not sole or exclusive carry any of the governor,) it was but insert necessary strong transportation; terms, This another proof convey right. express it. not the now had signification given enlarged word 1640,-the“treasurer, Mr. were Shepherd, ín Mr.,.Sprague but far had been two kinds let the Thus ferry. authorized there ¿ction First, to establish ferry, on the colony. bf part were it. There second, plainly privileges to lease regulate of it it, but as a tiling they speak or exclusive rights appended limited for a another;,and leased, when be set up gave TERM, Bridge Bridge et River v. [Charles with it; certain'well defined to- but those period, privileges go privi- in what was called were not embraced but the'férry, leges stood it, and and from were at an end with distinct separate lease. “ be,tween 1640, the record In the same The year, says, ferry Boston and Charlestown granted college.” title This is the whole charter, What college. fair construction is The more—the set granted? ferry nothing thing up. — No such as specifically enumerated lease privileges travel, line of such as is now claimed—no Converse —no covenant not to not to travel, divert or establish other or not to ways, impair at income. There is which looks nothing privileges. is a naked What is a books, ferry ferry. ferry? Tomlin, AH —a Dane, Petersdorf, &c. define it to be a Woolrych, and the highway, word, ex means no more. termini, vi The term ferry, therefore, in and of itself, no such as are often implies special privileges, connected with a or The ferry by special grant prescription. colonists so it; understood and in a charitable to the making had gratuity college, the control or the ferry, waters of purpose placing The income, their reach. doubtless meant, river beyond should to the but retained the they actually possession man- go college; till determined the rate of tolls, and always how agement should be accommodated. ferries, books, The as found in the doctrine English applied ease, full confusion and so to this much uncertainty; so, it, varied remodelled their claims have, under plaintiffs river, the whole them travel between right; reducing done, I I before shall ask them Boston Charlestown: claim, what is the of their where the extent authority again, cases, Let us look at the and see which defines extent. how doctrine stands. cases, the doctrine old which is found 1. The class of “you “ or I franchise, cannot exclude my ferry impair my f has been and which times competition;^ many injurious asserts approbation; repeated great apparent argument, I will cannot be maintained or show England, for a where, at this is too bold even day. monopoly govern- There was, therefore, ment a necessity privileges. narrowing and so a so to all doctrine inconve- repugnant improvement, down was, to all occasion to nient who had travel. one piinciple an old ferry, could show that new way, however ferry, owning XI.—3 P

Vox.. COURT, SUPREME alj v. Warren travel, a diminution of an action tolls, or caused' diverted remotely,, was held a new nuiSancé. lie, way,, and the ferry, would 2 Sáund.- Ford, to the doctrine set Yard v. ri£e up This gave Butler, R., and in the case Sir Oliver Lev. Hart, Willes Blissett talién, and since to have been was the distinction appears Here license from the without to, that one up ferry, adhered king, setting liable, old to an thereby; ferry would happening injury license, obtained he whereas, if he had first would'not license, under were on different who áeted liable. Those placed without, the license pro- from those who acted although footing old A careful ferry. without any compensation cured paying this result. conclusion then of these cases will produce analysis damnom, an license, after ad ferry under is, quod granted entitle owner of continued, so as to be far though injurious, may The if no license had been ferry granted. an old cases damage, this conclusion. Hart, and Sir maintain fully Butler, of Blissett v. has been damnum, no of course ad gives damage, The quod n manifestly down to narrow rule, old used to evade rigorous ferries,' markets, &c. under a return upon franchises be, because the new markets writs, that new granted, ferries, them, ones and the old will not thereby. need injured greatly public n ‘Butler’s was in that the new market The reporter alleges, I is, it. convenience demanded agree, because granted no when there is to return absurd damage. damage, á so, for if ferry if this be is a license yvhy protection; But idéa of then it needs it does where no,injury, protection. license, the therefore, without the necessarily implies protection, ad liable, he would be because does process injury. party shield license, is used as a therefore against damnum and. quod down this kind of and to cut franchise. liability, R., 4 T. Frank, came the doctrine which'struck Next Tripp franchises, and at the doctrine of the old ferry effectually more them into circumscribed limits. comparatively brought ají.: to,Barton, on from travel plaintiff, claiming Kingston from Humber, sued the for persons transporting defendant Barrow,, side Barton, on the some distance below same Kingston Barrow, had river. The usually travel Kingston to. Barton, and went ferry. therefore plaintiff’s through passed between to all travel He established his prescribed right, authorities, Barton; the old maintained, that under Kingston TERM, 183J. y. River,,Bridge Warren to, or to set competition, impair up injurious which forbid, right the defendant was another, damage; he entitled the ferry would have Barrow, directly passengers had not transpprted, boats, and therefore he lost to Barton plaintiff’s. over passed called, as it was travel, broken, is here toll. His his line' court nonsuited on the the .plaintiff, of it But diverted. part had an exclusive between that he only apd Kingston ground his the circumstance that accustomed Barton. They disregarded This, therefore, diminished. his tolls was lessened, travel was doctrine, shall that one not set up inroad unequivocal another, or his for it iá impair ferry; injurious competition against diminished, and the value undeniable, that the toll ferry reached lessened. The franchise which formerly injurious com- the two limited to an exclusive between was here petition, a most material towns were. This was where places landing in a doctrine; so considered late the old and was modification Parke. court baron by, case of exchequer where I many The next ease of over importance,- pass is a late case of the courts has been requisition, put learning called periodical, in an English the court exchequer, reported the notice court Journal; the Law and introduced barons took time the learned Here counsel. again plaintiff’s to ferries was. law After a what the consider relating advise and consists in an franchise exclu- declared, that the it is fresh research town, town and and ville; ville and place, between sive right place to bear on these points, must brought competition a was at landing person- justified Hence defendant lawful. between and Nayland Pembroke, Point, a intermediate Hobbs’ place and to Pem- near,the latter passenger going place, though ferry between plaintiff’s was no Nay- This infringement broke. I -case, remember it from as a This is hasty and Pembroke. lánd perusal. Would a from ferry from it? London

What are we to to gather Thames, be from to town to place place, town, across the Southwark on each bank ville, vast could to so that the population or ville have connexion have What lines arbitrary no other accommodation? travel, or the towns, cities, public parishes, another, in most of the one to United county From accommodation?' for the smallest States, there are or- political is to from place; place Two counties states. stretch communities in many up ganized SUPREME COURT. ' v. Warren miles; down'a river banks many is any opposite ferry to exclusive whole of distance, because the franchise.the This, two so cited, stretch far? and all places authorities courts, so of a constant only many proofs struggle part to law; what the of a ascertain franchise is in and to ferry bring down to more limited old to it. dimensions than the cases assigned

Am I not that the then doctrine is declaring, justified manifestly courts, confused and that the seeming much vacillating; without law to modified the suit the times, ceremony,“have temper to appease just complaints public. But if the law is I be in to our should undergo "tange, prefer courts, (cid:127)own to our here, condition. Let-it be done adapted bench, instead of in or the king’s exchequer.

This, however, is for no safe not the course to it furnishes pursue, and sound to rest upon. principle

It seems to me, if all we on which these analyze prescription, rest; cases of will be to lie for all the ferries found English rights we shall prescription; find a ground interpretation will be to satisfactory, show these cases tendency that have'no establish the doctrine contended plaintiffs. them cite has,

They it, prove ferry appurtenant franchise excludes from the waters injurious competition it. above and below I shown, term has already ferry no such extended and I will new signification; show that these cases conflict with do not and that furnish position, nothing aid this notion constructive and but implied every rights; ferry limited to what is .strictly the aid without granted implication. iq differ in the mode of

Prescription grants only writing, its own proof. contents, and the extent of writing proves the terms grant gathered express employed meaning. (cid:127) to take allowed Prescription place writing supposed be lost. permits evidence Equity party to'produce prove claimed, hpw what he has what he and if the enjoyed, long; la„w sufficient, period enjoyment presumes that.he.had lost, which has been that would by its'contents, writing prove coextensive with the In the Frank-, case proof. Tripp that he example, plaintiff had an proved exclusive trans- port travellers between and Barton. The passing law Kingston therefore if his presumed, written title could have been pro- TERM, Bridge Warren Bridge words, court, would, in so

duced have him many such an given ' exclusive right. therefore, Cases of afford no to countenance prescription, implied but constructive stand on precisely rights; same footing titles which lie in can never or diminish writing. Usage enlarge title, for one is not exercise his. obliged preserve them; nor does usurpation theory enlarge right. usage only to show what the law been written. goes supposes Before, then, can use these cases of plaintiffs es prescription tablish franchises, must show lost title is implied they not to be held to be Commensurate but is im proof: something what is to be written. This plied will beyond find it supposed difficult to accomplish.

It this, follows if I from am correct in the.reasoning adopted, ferries,- nomine, eo have no particular them. privileges belonging be, what authors water They define and eaoh highways; them e franchise is more or less extensive, to th terms of according it. It limited or broad. grant creating very very cases, confusion not arise does un- English where, but certainty from the uncertainty proof, principle; lies in prescription.

With .these which, I fear, have been explanations, unnecessarily I minute, come to the what was inquiry: granted college? And I answer, the the same set ferry; Con- up thing verse; th“ river, over way Brown, house esta- against blished in 1633; a road bank; from bank to for this is all a ferry over the river It was an accommodation to a few adapted means. inhabitants in the wilderness.

If the broader, it extend where does to? The terms franchise indicate no down stream. Will the privileges up tell us plaintiffs where their are? bounds Do know? Is there rule Of implication them any assigns privileges can If tfiey is, define? there I call then,' on them to down the put boundaries; to show the Court the limits. to show enough that the terms of construed, grant, literally strictly may,- under possible circumstances, render of little or no their property value. This made a bad proves contract,'but only they may has no in them unmeasured tendency establish undefined and rights. COURT. SUPREME Warren Bridge v. River al.] [Charles that plaintiffs remembered remonstrated it be

Let Boston that it would di- of West bridge, alleging the grant against counsel said tolls; and opening they compen- half their got vert which of this was from Cambridge Ihe erection bridge, sation for remonstrated Canal Boston. they against bridge, Port Again, franchise, and this their run from Lech- interfered with it alleging Boston. Point to mere’s reach either these their franchise does not

Now they say the case Charlestown; Boston and but is limited to bridges, to sustain it.. Field is certainly proof, v. Huzzy quoted This law has so uncertain conclusive, that the the plaintiffs that very the extent their own to show as they not been able rights, uniform make claims. them, or to understand as- them; the old as I they cases have represented Understanding and as the Eng- to arrest competition; injurious serted franchise, time have cut down privilege lish courts till Boston claims have lie between time, diminished they so. Charlestown alone. rea- reasonable; the franchise must be and what is But it is said deemed it an exclusive reasonable assert privi- They sonable? water and to new the tide over deny open any ways lege, travel which would other- Charles divert river might has been deemed them. to all reach new wise Opposition bridges But reasonable. why enlargement reasonable? to the take from What you public; you ferry the. give it without inconvenience. cannot spare of con- reasonable, is it traverse word, right, regions laws which shall boundaries matter? To make jecture assign franchise, can no manner of title to show when plaintiffs (cid:127) what they setup? is a clear interference, that it They because urge Warr.en Boston takes their tolls. So is West and Canal away bridges, same for- if reason; would over the travel go plaintiffs’ bridge - these were is no more competitors away. proof decisive-in Warren, than in the other is not diversion travel bridges. cases, cited, that; evidence of show wrong. English clearly see Frank. The if consists in Tripp any, wrong, invading do, affirm, I as them, And ask plaintiffs’ grant. again it, that we on Show us out its bounds. some certain are point evidence that we West are You once contended that trespassers. TERM, 1837. Bridge et Bridge v. did, would, as it take nuisance, because would be a Boston bridge Canal same against bridge, You argument travel. urged half yoür them both to be law- now admit but effect; you same had This admission not franchise. are not your ful, because they claim, but you uninformed you only proves di- travel bemay lawfully accustomed of your portion that a great is, of the diversion of travel I therefore repeat, again verted. must, You there- oro of a itself, your trespass rights. evidence reaches our franchise some other fore, your proof produce loss tolls. than (cid:127) nor esta- by any do show terms grant, You such an authorizes construction, which implied rule of right. blished contracts, of alter but to in- to courts .make It is not the business words, “the between ferry them. Is there any thing terpret which looks and Charlestown like college,”- Boston to granted or river, or an control over Charles any part exclusive por- granting line of that it, ferry? tion way except show, to that in I shall hereafter adduce conclusive proof England, construed favour of of this contracts character rigidly countenance to No given impli- against corporators. public,; the clearest and what is made manifest most ex- cation, beyond Barn, Co. 2. Canal Adol. Whaley. terms: Stourbridge plicit 792. - then, been has of the interposed ferry, against franchise river, when across Charles brought scrutiny all improvements limited found to be a confined will be very right, law, path river. across of the'boats corroborated the condition of

This reasoning strongly as I time of the establishment have al- ferry, at the colony ready suggested. sentiment, colonists, in 1641, further al-i

As a proof public with the and before it took simultaneously most grant' college, was till effect, an act (for incorporated 1650,) passed, college for inventions. monopolies, except prohibiting Massachusetts, and wise to free policy respect great modifications, 1639; established in and with has been highways, time; 126,267; Ann. Ch. L. of M. ch- to this continued has at acts, a to construct free all times-been ways these Under best owes it the so that Massachusetts roads exercised largely, times, at havé, Union; tt found state in at can SUPREME COURT. ' v. Warren al.-] established, regardless turnpikes, canals, bridges, railways, improvements. consequence been, as is well known, many turnpikes been abandoned to the public.

Such has been the action of sentiment, and public such its results; is the instance first in which the to establish new ways has been questioned.

All these lead to conclusion, considerations one is, that nei- ther the nor current language grant, the great public countenance, to the claims set opinion, give any up by plaintiffs, founded on this for an ferry, exclusive franchise extending up down the river.

The late lamented chief .and distinguished Massachu- justice his setts, Pick., 7th in this his opinion, con- expresses victions the ordinance did not strongly point; give between' the two exclusive towns iri .to ferry, construe it, that the be considered, cotemporaneous as it history-ought ing tends to intent of the probable explain colony. then, the Court confine

If themselves and the ex- language circumstances, both of the and the at the country isting college, times ordinances; the several will arrive at adopting probably conclusions, as indicated in the case. The distinctly colo- following nists meant establish suited to the ferry, then emergencies to establish a but not broad franchise. needed a country; They found, education of seminary youth, income' could aid this of this therefore meant ferry, they They object,' revenue as a secure the but no- férry gratuity college, this, while did more. And intended to retain they in' thing they to control, themselves the unqualified manage, regulate, To make the at much or pleasure. little; ferry income govern and to make such for the travel as just provision public they might deem This is the conclusion which expedient. is.forced upon mind, acts numerous by reading upon subject. college was then esteemed the child and that government; government considered itself in that relation manifestly with the standing power, to exercise Now, what effect Court will parental authority. give this state of law, seen; to in to remains but there is things, little the actual relation difficulty understanding parties. I clear; One however, thing apprehend, is neither namely, ordinances, or the history, afford evidence an to create any intent

JANUARY TERM, 1837. et v. Warre.n' such a franchise as is If, now claimed. therefore, the plaintiffs have this it~cannot ferry aid their right, present claims. at They much; too grasp all the river: or if not, can they assign limits,

no either law or by the the facts. The is not public, to be of its deprived over a river, sovereignty navigable such inde- finite, uncertain pretensions.

But we are erroneous suppose in all this to reasoning, regard the.franchise of ferries; I then propose another for the so- objection lution the plaintiffs.

The doctrine to applicable ferries, to ferries alone belongs among It is feudal-in its highways. and has never origin, to applied turnpikes, canals, bridges, railways, class ways.

I have observed the attentively this progress and laborious research of the learning to its plaintiffs aid. brought books, No ancient or modern, seem to be left unexplored. Even table; fresh from the periodicals, are on the foreign 'press, yet shown the Court no case dbctrine where which this ' has been set class of applied to ferries. up, ways, éxcept and Ohio Canal Chesapeake Baltimore Company and' Johnson, Gill and Road has been Company, Ohio quoted; Rail but for the purpose franchise, exclusive surely showing allowed to run side side, works actually these infringing upon ' (cid:127) direct other, though competitors. each canals, covered &c.; railways, but not England bridges, them; adduced has been doctriné applying case honour a feudal such works saved for the of extending courts maintained here, if it is to be at all. These feudal. are well to have known originated very spirit cupidity; ag- itself increased the mass wealth privileges gregated lords, at the in the feudal These expense public. rights grew circumstances; from the force of be law but it worth hardly up such while at or-to day ourselves enlarge provisions, push Britain, Great to them. ahead of sanction Under this giving notion of the same doctrine mills, extended to special privileges, markets, had a &c. market or a mill Whoever down keep might (cid:127) We mar- the law as to clearly injurious competition. thrown overboard; kets and mills exist in Massachu- privileges doctrine, setts: of constructive in ferries ought franchises follow* Q XI. —3

Vol. COURT. SUPREME Bridge et v. Warren It is I doctrine emphatically public privilege against right: of those indefinite speak vague, appendants appurtenants are said to not of ferries and implication; construction belong by is terms, what or and irresistible necessary implication. granted received, This doctrine it is the not to be unless imperative ought land, doubt; law the and can be shown to be so beyond this the have failed to establish. plaintiffs

I to a this ferry. come now very inquiry regal’d important If it Are it what owners may? plaintiffs right, the franchise is it is a of no whether not; question -importance, here, will, if do not mistake broad or narrow. The facts I the Court from all embarrassment. character, relieve commonwealth has counsel, I plaintiffs’ agree use; to take and the any property public right power she had a take the ferry therefore also with them right agree for the site of a How could controvert plaintiffs bridge. and' the ferry on ways, when their is the ferry proposition, bridge follows, the commonwealth it no means under it? But path franchise, that- she use a had the to take for right Let us This must proof. it to the depend plaintiffs. granted done be, has been see the franchise is claimed what what with it. that the franchise was an exclusive It asserted by plaintiffs, Charlestown; between -Boston and &c. persons,

right transport It is a This is an interest realty. possessory right, issuing across the to exclude so far as the river transportation goes; therefore, to me, that it seems I am aware is’incorporeal. though could Massachusetts transferred only the laws ; 1783, ch. 37. .18, Laws, Ch. Courts of no deed; equity'have Am. these But the no away provisions. plaintiffs construe deed. no or act corporation, vote college

Again, its officers implying any purpose, thought conveying interest. vote, or act of their produce own, the plaintiffs evincing

Again, become the owners of to_ on their part desire the.ferry. and it their charter does not papers, even among petition oyer but its head, as not worth the college; name passing regarding,' “in the where ferry place to.build asks for There is the case to showj now nothing kept.” in. 491 TERM, aj.] et Bridge Warren Bridge River v the minds of petition- ever entered ferry, thought owning a had no difficulty ferry-ways ers. They demanding grant of a themselves, any compen- for the site without bridge, proposing now Those sacred for it. private rights, sation great obstacle to in this no serious so seem have been largely figure inte- of a more a convenient but change to the way; introduction a rest, has, wrought change opinion. probably, col-, then no evidence on the any There is purpose part been to if has sell, to the plaintiffs buy; property lege of either act, been done without the assent transferred, has strenu- if it is difficult, This would seem not still impossible; party. act of because the 1785 insisted ously plaintiffs'to upon, requires two a out of their tolls hundred pounds year college. pay it, in This, said, consideration, is a and draws after equity, good it.is the title to the franchise. The conclusion is not ferry apparent to a year, If two hundred premises. required pounds being pay is not the corporation makes them the then ferry; why owners four owner; an for to West Boston pay bridge they required also a to the' Canal would hundred year pounds bridge college? were share, too, me, a as' come in for if they serves memory my to to The would plaintiffs required pay something.. probably object is there for this these But foundation , any pretended copartners. Who has it? Let the facts answer. legis- paid consideration? ex- liberal, lature a toll for say so granted passing bridge, dollars, that for an thousand outlay forty-six plain- travagant, return of thousand tiffs over one million two hundred have received hundred dollars, admit; as and their cost one shares, which two hundred been sold for two thousand dollars. pounds, have, therefore, been a tax the' a year paid by upon public pounds travel, authority collected under legisla- plaintiffs The tolls set cover ture. appear very high, indemnity; and to early public plaintiffs expense, give make the amount new diminish have occasion ways, might This was doubtless when view rates travel. contingency can, therefore, There be no established. reasonable were ground have ever cent of paid saying plaintiffs compensation. without or ,any would extraordinary, they, any conveyance, consideration, and without could set convey, up purpose tó a valuable property. title further,

But that the conveyed ferry suggest state SUPREME COURT. [Char¡es them. The act of franchise to will be searched in vain for the intimation purpose.

Moreover, state has to take the one, property it to another. condemn so much convey They as is necessary use, but more. To test matter, nothing suppose can were taken set I away, plaintiffs think up ferry? can hesitate no one what answer to are authorized to They give. and no other maintain kind of way. is, of the matter conclusion authorized the set and took them- up upon .abridge ferry-ways,

plaintiffs or,dissented, which neither but selves assented quiet college, on the commonwealth, which had been its always Telied great patron that eventual and should protector, not be done it. injustice learned three to one, reached, this result judges, substantially, It is therefore in Massachusetts. that the. are not plain, plaintiffs not, and have and néver had therein. ferry., interest any grantees franchise, therefore, be, whatever is ferry may' impor- to the decision this case, as the can tance claim plaintiffs nothing it. The under failed to show contract in plaintiffs any regard having to the no law ferry, passed touching having for the act of 1828 does it; not name or allude ferry; nothing the. state to done or to contract, been a impair obligation discussion, the constitution of the United how- States. The violate ever, useless, as some wholly principles examined, that are to other of the case. applicable parts now 1785,

I shall examine the act of under which proceed to build the all other acquire rights plaintiffs This.act is have. so barren in those which they provisions franchise, for feudal a been made necessary are effort has great to, claim build doctrine of ferry up Nothing vague rights.-. is more surrendered than inordinate reluctantly profits. of this are, act as follow: provisions substantially, 1,

Sec. a corporation. creates 2, Sec. for its provides organization.- 3, Sec. a toll for forty gives years. 4, the dimensions,

Sec. relates to- &c. of the .bridge. £200 a

Sec. 5,'gives year college.

These are all the provisions. had asked, for what to erect

They namely, right granted in the toll to take place where was then ferry kept, TERM, v. Warren Kiver etal.] This is all the franchise of such over. for passed provided act. There is not a word about any rights privi exclusive . to make new No Nothing leges restraining bridges. covenant, that there shall be no diminution of travel, or diversion of it. No of travel said of travel line between guarantied Nothing — Not word about two towns. if making compensation, any should be taken for use. You will look property public vain for such provisions; plaintiffs act, out must be are not growing implied, they' secured Here the recurs, by express stipulations. question what the rule of construction such acts? I shall ask attention applicable-to one the case of but Canal C'ó. authority: Stourbridge Wheeley, Barn. I & Adol. which have referred. Tenterden Lord says: act, Such an that is an act of parliament plaintiffs incorporating canal, to make a is a between the and the adventurers, bargain act, are contained affirms, the terms of which He such acts well established to be in favour of the construing rule adventurers; which is public, exactly against opposed the learned counsel in rule so laid down this case. elaborately declares, His that whatever is distinctly emphatically lordship constructions, two doubtful, or whatever capable ambiguous, must be adven favourably construed public, against to run on all fours with thd?one under turers. This case seems con of its features —both sets sideration, in plaintiffs corpora- many both own and each tors, acts of ways, created by legislation; claims alike; are therefore characteristics and a franchise. The general both, to as of law the rules regards construction clearly applicable so, can tak alike; to and charters, plaintiffs ought e them, to either is and distinctly but what clearly granted nothing The inference. then words, necessary question and by plain inference, terms and irresistible arises, is it a necessary doübt; of no as to act; legislature so admit this plain thing franchise, to which they to the roving did-intend'to plaintiffs grant Boston West which, in was above bridge, no limits: can assign cannot1 If and Charlestown? plaintiffs is now limited to Boston but inferred, if cannot they to be assign and to the body shape thing give is; how can it be tell word, if cannot what in a limits; they to it It can neither be or a inference? be either a necessary said to plain it, thrown doubt over and other; the one forbids very o.r the so asserted clearly principles the inference, according making SUPREME COURT. Warren Bridge v. Bridge et , lord Tenterden. cannot Implication is 'by go beyond what certain, irresistibly necessary; and where an'act especially is of an capable construction, consistent with its without obvious general purpose, This is act of that character. implication. The legislature, to construct and maintain a right take tolls granted toll for does not forty years right taking beyond go —but it of such demanding persons privilege voluntarily over. pass that is This is all these have not been guarantied, touched. rights Whether another should be erected, so near as to bridge divert is a matter which did travel, not bind themselves not they do, but retained in themselves the to exercise right discretion, their as they in their needed judgment, new accommo- pleased; asserted the They and diverted half right, travel, nearly .dations. Boston when West was set when Canal bridge up again, was bridge — set when Prison Point set up again; up lastly, — —and when was erected. has, nevertheless, The commonwealth exercised power spar- when only pressed by strong emergencies.- ingly; plain- asked, in tiffs their to be indemnified for petition, their expenses, been suffered until they have been remunerated go ain most manner. The times, at all princely commonwealth having, to set do it, foreborne to in a up interfering bridges, most little merits the becoming spirit liberality,, denunciations her. loaded Such seems to me to be the now plain import, act, and no forced construction or meaning the obvious implica- the. to ascertain necessary tion the rights parties.. plaintiffs diversion is an travel invasion of their suppose seem pro- is a mistake. have no travel, This They property perty. over travel their now admit nobody obliged bridge; where, be erected between Boston bridges except Charlestown, however much travel divert. they may that a of toll affirm means un forty

They years nothing, unconditional, it be absolute and thé less travel. securing Might on the condition that other should express granted bridges be. if deemed Not erected, expedient? away power, equi granting it; and the valent never surrendered retaining ' have, build new therefore, their plaintiffs bridges. enjoyed diminished; to this Their tolls subject privileges, right. act; neither but under the violation wrong, TERM, 1837. v. Warren et al.] to I been done as corporation, nor has any purpose injustice before I this leave point. prove, claim a construction. is not Why

But reasonable they again make'less construction but reasonable? are plaintiffs money; it not Would be more reasonable to indemnified? them permit tribute, an and to endless public exact subject great thejr in inconveniences and- business? were the delays large What tolls, á for, unless granted speedy indemnity, public give when heeded? What have new accommodations would be might is reasonable? told what They plaintiffs’ you, judgment it was control all the 1792, over important unqualified portion not, said, the river. You must our con- impair bridge. Any unreasonable, struction would be deemed should diminish the toll. sufferers, is said there are stockholders who are great

Again, at I will two thousand dollars a share. having deny bought stock; I I this, for am but will uninformed as to holders prove that this consideration is entitled to little even weight, equity: I will show that most no- unequivocal gave'the .commonwealth tice, to all 1785; of the act of her construction artd when persons, 1792, renewed it in she record a solemn and she placed public declaration, that she legislative vested acknowledged that act, as claiméd here. In Wendall, others, Oliver for leave to erect petitioned what is called West Boston about mile above the plaintiffs’ remonstrance, sent plaintiffs bridge. their. objecting, would their impair one-half. property, reducing tolls petition remonstrance were committed to a commit- joint tee both houses, who heard evidence and counsel in behalf of the and after a most full parties; they reported favour investigation, ' the new bridge. so houses, This was amended the two report eventually Contain all the 1792; of the act of and in this form it provisions by both houses. thus aecepted as the report, adopted basis of this law, is contained this There is nd declaration: —“ ground maintain that the act for the incorporating proprietors purpose to Boston, from- Charlestown is an exclusive building consi-, river; build the waters but over dering erection of Charles was a work of River Bridge magni- tude and hazard, and that have arisen benefits great SUPREME COURT. Bridge Bridge River v.'Warren et [Charles al.] “&c.; that success of- it is reasonable the enterprise,” pro- of a further be time to said thirty years that granted proprietors, per collect, benefit, for their the toll now receive established

to by &.c. said for passing bridge,” law of the broad claim on the apprized being legislature setup committee, took this to before occasion in

trial connexion say, extended tolls, that had no such plaintiffs grant rights; extension, meant to they that countenance give in.giving reward, but most a commendable simply no such-thing, liberally, of enterprise. spirit 1828,

When charter defendants was granted had and the entered had forty expired; plaintiffs years upon for, period 1792, extended act of or the provided charter by . West Boston Company. Bridge declaration, acts,

This of this law, concurrent passage being cannot be legislature mistaken. their the"meaning They put denial, raise not to upon right erect explicit implied covenants to. declare, that extend the they tolls, because, new bridges; reasons, had no such exclusive plaintiffs among privilege. them act of accepted provision plaintiffs .the to be it, claim benefits bound 1792; plainly ought equity this exposition. were, a distinct notice who It was be con- persons, might in the that the denial of cerned of the state to property, would new make whatever bridges, regarded; might by construction, 17S5, under the act privileges, renewal condition, on that was pretension against should be set state of .the up. said, this- is found not,

It that only has' and is report, therefore, But to I answer, was the obligatory. report deliberate distinct, in both It .of branches. legislation, subject . both, in their constitutional acting accepted capacity. part is. the records and law is an it, files. echo only embodying in the accustomed forms matter We offer this legislation. report, alter, or to not to but to act, explain away provisions made an inference refute an presumption; negative implied which, is enforced; to be to show-that the attempted -engagement did not mean what the to- us plaintiffs áttempt fo.rcé construction: and most it is for this assuredly competent pur- which it overthrow pose; competent positively présumption TERM, 1837. It is therefore and has refutes. conclusive upon plaintiffs; if same on their that it would have effect presumptions restraining then, had been embodied the act. How can' show they, it ? The counsel do not claim a franchise effect replies, they to West Boston claim between extending they only Charlestown; and Boston and there no’distinct set up claim larger in their If remonstrance did not consider the West did interference, Boston an remonstrate; and project why Why that it take travel, would half their and ask a refusal represent away ? can, desired But petitioners suppose, you did not mean assert such a would be an they really interference, the declaration, which the remon- answer strance, the more becomes ánd it is then only pointed explicit; so words, have exclusive between many you saying, Charlestown, Boston and' and we admonish of it, and renew you with charter are to so con- your express you .the understanding sider it. View it then which it bemay any aspect presented, and the unshaken and still stands cannot be construed declaration away. where, as a condition of the to renewal, not be clings every explained away.

What then have stock right purchasers complain? They bound to notice the terms of the charter, and regard provi- sions; and not to demand relief from an surely inconsiderate Ought of rash contract at the public. expense

But the Court been asked, has with considerable if the emphasis, would a charter, with plaintiffs left in accepted to erect at legislature bridges pleasure? answer has been did already it, after They all given. accept,

the deliberation make, saw fit to no- they unequivocal tice before them. ask, in turn,

We if the would com- granted legislature any claim, such if pany been'set privileges they privileges .had forth in in the act? Would plain intelligible they have language an'exclusive given over the river body? any is such answer hand. sooner claims No set .at were again than denied their up, they refused them. validity, recognise in 1807, when was They Canal incorporated, again, Company Bridge manner; renewed declaration them in a formal against again, s have, when Warren at all times, wa established. Bridge They protested earnestly all claims. The views legisla- against Vol. XI. —3 R COURT, SUPREME al .Warren ] doubtful are not on this have not and of people, point. They

tors silence, of for a moment misled the favoured pre- plaintiffs tensions. is is of.

But much said Their hardship.' property; said, it is value, worthless; rendered hab taken great Here to others. mistake their them plaintiffs rights, given from false had a and reason premises. They- théy property suppose travel, had when none. There cannot they public travel,' because no one is under any obliga- public property is an toll, the" and that tion to he optional pay passes unless If act of 1-785 no restrictions upon act. imposes legislature, then had a new and- bridge; nothing authorize they all the All that can travel over taken from it. plaintiffs, passes to exercise its lawful is, that while forbore said deal made vast an exclusive money by rights, enjoyment; less, not them make because is taken from and now thing but because a lawful theirs contract grant, competi- Their case differs from those is set hardship -nothing tion up. occurrence. of frequent tavern, custom, B a A and makes sells having large

Suppose near and the .A then erects another house custom by, conveyance. B B is ruined. has no A him, unless has whereby follows remedy, do not-to this act. covenanted expressly business, de- tavern, store, one place Again, for its new travel custom. A road established, on pendent it, from and renders this travel worthless; which diverts property but bear has no must the loss with what remedy, ownér patience occurrence, These are matters frequent he may. present than the of much are called to hardship plaintiffs cases greater endure; too rich to have harvests be sufferers. they reaped great on will, real estate to their if

The owners bridge, avenues or discontinued, is suffer travel more impaired, probably greatly but what have than severely they? plaintiffs; remedy plain- tolls, therefore, should hereafter less will be tiffs, receive they It will that their doubtless turn out extraordinary position. no- pro- worthless, as it be to other uses. is far from applied perty relieved, if there is that what Is to by But hardship?’ he making Shajl the here, or an old common- new contract one? by altering relieve the to that wealth, to plaintiffs, party made stipulations entered into? This losses would be more any she never unjust-than TERMjJ.837. Bridge v. Warren al]- [Charles'River can occur to which plaintiffs. Presumptions or inconveniences too often the parents to relieve hardship, greatest up got injustice. it is to think incredible that any seem large plaintiffs on which should rest have forbearance they enjoyed,

privileges treat idea that the. should hold they commonwealth. They of the her To-be at the will, at preposterous. mercy any thing absurd; so irreconcilable with that is just reasoning, state construction to this act of We to be entertained giving not this; at conclusion but arrive, think, they very must though us into this the act force position.. terms the control river; the state or Either plaintiffs the other from a sole In order has, excludes whoever enjoyment. control, would- the state' to plaintiffs themselves free bring hér at their This would be feet, and the measure place mercy. their I will out their construction. meted it to the leave justice would most to determine which becoming Court posture, the ends of best subserve would public justice; place state; at their at the the state mercy mercy. ov plaintiffs demand, when exclude say they They inju- shall be arrested on travel the north bank rious competition, river, circuitous inconvenient ways and-driven over addition, shall, in tribute not to pay perpetually; to the mass of but add for the wealth indemnify enterprise, already this burden, If state is tied down to so; be it but accumulated. of it. Let it not be decisive let us see proof presumptions, implications. wish let them do

If equity, equity; plaintiffs first. them had Let admit notice frankly principle. 1792; their act terms was renewed and not limited try out of that all fact shut important sight. and her untarnished, honour of the state reputation fully in this matter; has been much false rumour much There vindicated. has made The state mistake unjust imputation. attempt her or to violent and resume seize revo- grants, private property, acted il- measures, for use. She has not lutionary arbitrarily, public but, on one; toward the contrary, liberally, ungenerously, has forborne use she saw who had her lawful until those power, service; reimbursed, don© valuable but enriched only She manner then listened ordinary surpassing acquisitions, SUPREME COURT. v..Warren the demand of for further accommodations, and not till then. There is blot her escutcheon, nor stain on her gar- ments, this matter. I this, assert that the fearlessly counsel are mistaken proof that a

when decision favour of the defendants will say fatal to future case has stood decided in their court This enterprise. for and the several Massachusetts can exhibit no years; history that will with it investments internal period compare improve- Confidence in the faith of ments. the state never good integrity eyer stood nor did forward with resolu-' higher, capitalists go greater tion and courage.

I feel, therefore, that the honour faith of justified affirming state is stands untarnished, she blameless in her conduct. I come, then, conclusion, reasons; for all these that the act 17S5 construction incapable put upon by plain- tiffs:

That its and it no franchise plain, beyond meaning gives bridge:

That in 1792 this to it construction was given legislature, thirty and it was condition that then extended it should years, upon be so construed:

That stockholders can of no complain injustice, forty-six thousand dollars has returned them one million two over hundred thousand dollars; and if one is a loser by giving great price stock, for the he must it to his in not impute negligénce regarding the construction to the act: given the rule

That rule and' the adopted com- legislature, law, concurrent; and, therefore, mon if the notice should be ruled of the case it out will not the result. change I this, All in. contend, is full accordance with the policy state. Her has,

1st. free road times, at all system active, laws has rendered operation many turnpikes.worthless. 2d. The statute books will show that numerous have been bridges at or old near ferries, without granted compensation.

3d. and canals Rail-ways have been directions, granted, many of old franchises, or regardless to.old injurious consequences travel; but of this, more lines hereafter. Since, therefore, is taken from the old nothing the law' bridge by but the are left in full proprietors enjoy- possession TERM, 1837. Bridge Warren et Bridge v. River al.] [Charles them; and since their only complaint every of thing merit granted diminution of travel, tolls, and a consequent diversion is. of a have contract which any has they not able'-to perceive I am and, therefore, violated, or had conr impaired: its.obligation been ' not States has been violated. The act of the United stitution alter, rescind, or'modify provisions not 1S2S does in the full them, but leaves plaintiffs enjoyment act 1785; of their control the undisturbed bridge. some of the answer, more particularly, I will now arguments Most of the is founded on counsel. reasoning premises learned fail, law; if we sound will views or is designed which we have never assumed. positions overthrow He for has.no resume says, example, is, it; Our answer they and there- attempted grant. is not in the case. fore, that raised We contend no such question power.

What as their claim was never they property them; granted a.nd is, that do not the mistake own what they they suppose must establish title, taken their before away. .They talk they about and the the resumption grants, taking away property. must remember, that is They property very matter and one to be great points is, settled litigation; whether title that can stand show the test of they If legal scrutiny. they do, we do not claim it without an equivalent. said, the franchise is to be ascertained facts, and is to

be reasonable. It seems to me, that it is to be ascertained, as lord Tenterden terms of the says, by.the bargain; these in the act. found What is deemed reasonable, we have seen is co- with the extensive selfish desires of making When money. from the act, can find no plaintiffs depart standard for what is reasonable. the exclusive claim is To-day, between Boston and Charlestown; yesterday embraced Canal and the before bridge; day West Boston If bridge. can show plaintiffs no rule to settle limits, how can reasonable Court will hope relieve them from the ? embarrassment When we in search of go what is not act, in the we apparent the-dark; grope and hence, the well esta- blished rule laid down in Canal Stourbridge v. Company Whaley, shall not you build claims on up presumption. could find plaintiffs to rest authority upon making Boston and Charlestown the.boundaries of their franchise, until they SUPREME COURT. v.. the late case Field. What Huzzy

fell exchequer we, .law shall when the to ferries assurance have come under again that it will not consideration, modification, receive new and their ? boundaries then take new franchise and different rule laid the counsel, But another down by again, reasonable; is considered undoubtedly though application rests on different quite principles. of what is reasonable, asks, do counsel, how you treating the air is where Not bounds, settle what is nuisance corrupted? measure; but the noxious is, distance wherever not by atmosphere the nuisance: so with the plaintiffs’ where the there injury tolls, takes their away is Whatever is, there the nuisance. invades franchise; this is for injury complain. their doctrine; us back at once to old This shall “you view brings franchise;” and most man- conclusive my proves not impair nuisances, theirs are all the above ner, that travel bridges would if them- over chiefly go over which passes were closed others up. counsel, learned is too that the in his able has, argument, plain, to law, or undertaken what hé has is show expounded

whenever rule as the this he reasonable, back only upon resting place fallen what is must be Hé reasonable ascer- find. began, saying, can ended fact facts; and neces- only tained showing, into, is, of, does the lessen the sary to be injury complained inquired franchise, is does, a nuisance. If If it it this impairs tolls? - reasonableness, unreasonable- the end inquiry, is to be is not a set of the' franchise matter up, investigation. ness fact, but whether the tolls are diminished. that not into is inquiry to found be standárd-the only I be think, plaintiffs this will And, have, Indeed, admit that-some bemay you set injury ever up. dismiss this wan- the limit? Let us then done, where lawfully act back to the franchise, reasonable after a go dering inquiry for the contract; new that, hold to instead building up claim a down ceased to right put have professedly to plaintiffs their tolls. lessens competition that the control that -the admitted, It is says legislature counsel* them, as to the necessity and their ways; judgment

over public like British adds, it is not But he that is final and conclusive. correct Court has for this parliament, omnipotent, errors. TERM, 1837. Bridge v. gGharles also, not allow Court, this me say, omnipotent;

The power over an act un- no legislature, can jurisdiction and it acquire add, of contract. I may speak- obligation less act impair# such with, I that while deference respect, repose it great great ing tribunal, I no distrust in feel cause .for our this those confidence therefore, do not feel that we are unsafe without I, commonwealth. safe, truth are matters corrective; as we in most ' I can no more or hazard in see impropriety our courts adjudicate.' here; I there, for am not aware of than final jurisdiction resting excess, which demands a to error corrective. there proneness it desirable, be nor is of the federal Indeed, it cannot purpose over the laws carry jurisdiction constitution constitutions system would and I manifestly of the states. insupportable; case, show, I before leave shall, attempt jurisdiction not Court does reach because falls of this it exclusively constitution and laws of I within the Massachusetts. shall endea- even if has- to make it been taken for property vour appear, it; no violation contract do use, it com- question decided, our must court. finally, by own pensation counsel, the learned “the is limited says, Again, I ;” and of natural be, justice agree principles ought to take without but the property compensation: constitu- ought States where United this Court a tion gives inquire the state courts whether legislature, disregarded I of natural would if ask respectfully principles justice. Court is cases? to be the corrective.in I am not the of

But the willing reproach violating principles -should rest on the natural state. Did the state ask.the justice; plain- the tiffs to build Did she ask them to bridge? the act after it accept a law? was the and They made sought act, the privilege, after accepted all the to time consider its they desired taking provisions; and to had, continue have the full benefit them. The sup- violation of natural does not consist in posed justice with interfering act; the the but in to provisions claims refusing not recognise enu- merated in rights-unauthorized not intended by.it privileges it— — to be We cannot find the act certain granted. provisions claim the Is it a of natural they violation benefit. to refuse justice, them the to add what to fact? they please the. right state,to to they Court, the their to Again, prove accom- disposition odate that to public, to the they proposed enlarge SUPREME COURT. -Warrety ah] avenues, and to make other alterations to meet the so did:' but is it not too that this they emergencies; plain public when must.have known could not they came offer accepted? to build a had contested the new They bridge again 'again, committees, and The- to voted legislature. corporation before on 25th law make proposals February, thd. the 12th of ’March There is doubt, little following. approved after that were made therefore, they committee, and report of the' before the hill It is pendency legislature. during hardly that made, thus with propositions suppose, apparently reasonable that late and in could be reluctance, stage proceeding, than measures viewed, as counter delay otherwise plans —than But whether that be so not, measure. came they to defeat too late. considered it seems further, they themselves as no

But having accommodations suitable for the to erect public. They authority or the avenues, insufficient for the not enlarge could from the Is this con- power legislature. without travel, of exclusive over the If the claim river? Court sistent markets, it will the cases look into quoted regard found, will no are under respect franchise, obligation' public for the business is afforded; accommodations suitable -unless and the exclusive obligation, go together. right, hold this exclusive plaintiffs yet privilege, Is it.true suited Dóes travel? not way no open power franchise? Their prove limitation limited po'wer -the not reach beyond planks bridge; why? does enlarge them no further. rule, will what act of 1785 carry By Because If franchise further? can a fran- they then, carry imply will but I this think chise; they imply power enlarge, then may/ since, admit the act of gives venture upon, will to it. countenance some of the remained .leading arguments

These unno- Court 'in not detain the this kind I shall ticed, and longer pursuing I more of their time if I shall follow out occupy of inquiry, I taken, three than nearly positions argument days, various .in I will therefore myself think justified consuming. pass division which constitutes in the pleadings, next great issue. second labour we are assumed, K we our legal right positions have TERM, 505 v. Warren Bridge et here is for the unnecessary, case; have no but as plaintiffs we cannot know how minds of the Court matter, will run in this we must investigate point. is, has been question taken fdr property use, under public of 1828,

the act and no has been compensation made, is it a violation so as to plaintiffs rignts impair of con- obligation, tract, and thus conflict with the constitution of the United States?

I contend, shall that, whatever be the constitution and laws of Massachusetts, and whatever obligations they may impose where legislature, provide compensation, is taken for property use; the omission to do public it, in the act of 1S28, is no violation of a contract which within impairs obligation .meaning constitution of the United States; and therefore this Court has no in the matter. jurisdiction

To establish this conclusion, shall to maintain the attempt follow- ing positions:

1. That the is an power provide public attribute of highways, at all in a sovereignty, necessarily state. residing times “This is for .without this apparent; intercommunication power, would each confined in matter of interrupted, person right estate. own element of is, as much as his. sovereignty, without, taxation; cannot exist political it. organization 2. This to take power necessarily implies right private property use. The of a state is public individuals, owned territory road’s must run over therefore cannot be this.territory; autho- rized without consent, against appropriate pro- private use'. The perty is, that the public alternative must government or the can have no-roads. power, 3. All in Massachusetts, property franchises, is held including to this enjoyed, it as subject resting sovereignty, upon an incumbrance.

I know of no the state property in exempted liability; and iii the Pick. Com. Breed, the court it has allege, been taken always needed, when and mentions, be it what it as may; illustrative of the extent of this legislature .at right, obstructed pleasure' rivers, public highways. navigable was, plaintiffs’ built the very ways ferrv- Pick, and the lawful. court in 7th of this as considers This my far as' right, knpw- co-existént with colony, extends, has are the ledge been questioned. never Yol. XI.—3 S SUPREME COURT. Bridge et Bridge Eiver v. al.] [Charles and final in this

sole man- necessity taking property judges is as the that it ner; duty, representatives thejground Ibid, to for the wants. public people, piruvide 4. lies As this to the elements ways right provide among exercised, has and in its and asserted always government, for terms; follows, broadest it to take private right property and that the mere broad; is appro- purpose, taking equally of itself to can use, it never priation impair obligation public United States; constitution of the for contract, or violate all authorize the add fundamental of the slate property laws taking, is be so taken and held on condition that applied. always may taxa- it, as much as rests as an incumbrance right right upon tidn. 4 Pet. 514; needs sustained,

This is if it authority, principle substance, if a Bank; said, where it is Providence v. Billings it, that created ruin, be taxed to its the very power franchise contract, to tax is is no for the abiding public violation right make refuse to To property. compensation nay covering right but not of the United Massachnsetts, the constitution violate States. and non-intercourse make-war, to to impqse embargoes, right intercourse with foreign to .to

acts, policy, regulate public change all which may and to do countries, many things; perform losses; never, has and can hazards and the people great subject be their influence trade or whatever may upon be never questioned, be, disastrous such acts But however may property. individual sustained, the citizens are without be remedy. losses may whatever rich; but and another inci- make one poor, mutations These of mankind. Public condition the social political policy, dent all alike. New made to ways, cannot be laws, .bear and-public - this, one be must doing provided. property for example, ruined abandoned is touched, nearly being the new benefited of another passage.of ‘travel, while to the hold it hold right But all who property, subject it. over way it; and the demands right public good these make changes, attri- It is one those think, stand Imust, unquestioned. it, do exercised; and such be constantly which must of sovereignty, butes to meet necessary be taken as is must it may, it what property, ways. the exigencies liability from this is exempt that no property is pláin,.therefore, TERM, v. Warren state taken, unless the to be and it agreed exempt,it; well be doubted whether of a state has any authority to a contract to bind the state exempt from this property liability of the state. This bears a beyond pleasure resem- strong blance Bank, taxing power; Billings Providence to- exempt property taxation, perpetually considered to make roads, doubtful.. If the can be sovereign alienated as be.as to a to a small territory, 'may thus the large; state might, of one of its most power, dispossessed by legislative necessary and forever. of a state sovereignty 'essential seems to me powers be an unfit matter for sale, bargain hence perpetuum; whenever the right acknowledged, public it, demands exigency to us, new over ways as in the lay ways case already-granted, before for the taken. by compensating property When a is laid over but two way can property, questions arise; is from to this exempt liability burden? property and- is public for as is such taken for use? compensation provided The first public this; not in for these raised it is not questions jarged defendants’ touches from taken for bridge thing exempt being second, as I I intimated, shall use. at- public to does not fall within this but tempt prove, to jurisdiction, belongs the local courts. -raise another I which must first plaintiffs question, consider,

for meets me here in its order: natural that the act of they allege, of contract, 1828 therefore impairs obligation violated and this States; constitution of the Unitéd must establish before I can this Court borne therefore fifth give jurisdiction. to has to the state make to Charles inquiry, compensation' agreed for another River Company, privilege running river, or which diminishes If across their tolls? thestate way contract, made her abide if it; not, such let let the has then show some to here. us plaintiffs bring ' such can nor is 1785; No be found in the act there provision in the act that which would lead one to any thing suppose, or was, been could have within intent purpose,, meaning the legislature.

It But would, therefore, forced, be a inference. under unnatural acts, I rule construction to such deny applicable a clear and the Court to not necessary raise an which is implication If inference be all the act. at from the terms of inference COURT. SUPREME Bridge v. al.J doubtful, construction, or if the act is another then fairly capable I Court, be raised. submit with much cannot .the implication not confidence, that such an does naturally obligation spring act; th,e and one tenor of can fail scarcely language general he turns when to the bill of be confirmed opinion, rights finds, Massachusetts; and there to the constitution prefatory cases, made for where article, 10th compeñsation pro- provision for use. is taken public perty all, of the matter' at doubtless re- they thought plaintiffs, fundamental law. had mo- They

lied on-this provision act; for then, thé the constitution tives, for other provisions or ratified till four subse- was not made United States years ' of the act seems me hardly passage quent when act of 1785 was all relied on doubt, of a admit passed, for in case called bill for indemnity,, public emergency use. of .the franchise an áppropriation first, I will what provision This the state inquire, things, being And of Massachusetts? made to the-constitution satisfy been On has been of the United violated? second; whether that Stat.es I shall not said, I will add what only first point has. (cid:127) the bill of use, contend, is taken for public property where b’fc for it. does peremptory compensate impose obligation rights, taken real estate The act of provides indemnity , for the bridge. is taken. of their franchise

The part plaintiffs complain, es- but from real hereditament, it? is An issuing What incorporeal if N,ow, have they to exclude other ; ways. interfering tate right easement, of. an in the nature over river spreading right is not limits, their why new is within show that the bridge and can it because cannot Is they the act? remedy provided a-sufficient dimen- franchise, or reasonable this account any give define If the for in' claim omitted their sions, damages? that they put laws, of Massachu- the- then, not touch this does right, new bridge much they may however have no claim for can setts, they damage, suffer. Marsh, and many is in Callender doctrine well settled

The these: bill of cases; rules applied .the there the Use, party for is taken public Where property actually his have may damage. injured may owner touched,.however much* is not

Where property TERM, v. Warren .-{Charles bill, no suffer, has, under the he is taken- remedy, nothing use; is damnum what and it absque injuria; merely conse- If without is, therefore, remedy. of exclusion quential, above the new reach river then does not the defend- up bridge, be the liable, whatever diversion tolls; ants are not for they I shown, I plaintiffs. do' not touch have property trust, that a tolls is not diversion itself, clearly, very necessarily, any admit this, They the plaintiffs’ rights. invasion because.they that Canal West admit were bridge now both Boston qf both tolls erected, diverted to the extent travel yet lawfully is more than that plain them. have no they over Nothing property diversions, for if travel, travel;' had, they line these upon their line would be There from their can- aggressions- rights. one has in in what not be a neither nor property possession, can reduce no plaintiffs, one to possession. compel over bridge. go which the therefore, sustain, plaintiffs any, be- injury) come within limits defendants of their franchise,

cause caused a toll, diversion of which,- and erected under circumstances, must be unlawful. these is, to this failed to they utterly Our answer establish any title) aht of 17S5 such exclusive right gives countenance it; and are forbid such an they making unnecessary unnatural and. suffer, they then, right. damage implication merely and falls within case of Callender principles .consequential, Marsh, in 1 Pickering. we are erroneous But suppose reasoning, new-bridge falls'within their exclusive thus becomes actually right, unlaw- how is the case within the fully brought injurious; jurisdiction Court? I must show a violation pláintiffs constitution of repeat, can States before make this the United attach. jurisdiction jf state, act act They allege, being impairs contract, and of a therein violates constitution of obligation States; United because forbids the of such a la-"". making does What But what does it impair? vio- obligation contract I late? have heaxd much discussion about sustained the-injuries ip of 1828; the' of the act but have plaintiffs consequence contract, out of a contract, or has which pointed obligation it? contract, If is The is the act any, violated? where so, SUPREME COURT. 5X0 Elver v. itself; is state but this, a contract 1785. of respect, for the the character constitution is no more ap-. changes state, a contract with the than to other to contract. plicable- do to which it do? has the state refused to What undertaken has to do which it I. it hot has done? Court What has hope agreed act,, and see if can find look into there will any provision state authorized the erection and con- has been violated. .The which and to take toll of tinuance of bridge, right during period revoked, annulled, altered, It has not or of these seventy years. or not disturbed take toll. possession It has powers. of act. a letter But it is not altered state It has urged of a the erection diminishes authorized greatly has is, true; is here did she and this tolls; question agree ,or If so, acts 1792? out the it, by'the point do it is state, hands, admitted on all undoubted agreement. do new even destroy to make .bridges, if-they franchises use, when takes she but she .public .property bridges; And where arises damage. obligation must compensate 1792, but in the bill in the act Not rights. do this? and no where else. There is the obligation, nothing lies Here the duty compensation. of 1785 regard act the, arises, is bill of part here rights The question contract? contend, that'this Court cannot entertain I not, humbly juris- it is 'If reaches the constitution and .of only laws diction,' for its jurisdiction under; cannot this case that consti- States'; brought United shown, can be the act contract impaired unless a tution, states, constitutions solely belong The laws stat.e 3 Pet. 280. v. Jackson Lamphire, to expound; courts of Massachusetts; of the constitution bill of rights part contract, unless made pf expressly be any part and cannot not, laws of a state used to expound by agreement. so contract; Saun- vary Ogden but never supersede explain, 213; 3 Com. 249. Story’s ders, 12 Wheat. be added to the should act bill If this provision from contract both what supersede vary it would is.

now I settled, to be consider seem beyond question. These principles settled, a contract with a state stands well ground also contracts; all other the constitution differing no respect . TERM, Bridge et v. al.] River [Charles no reference has, specially States in its provisions, the United no to ab- bound is by contracts. state higher obligation to abstain from law, than own contracts by its stain violating citizens stand on the same other All all contracts. footing violating and the same ex- redress, measure in this with the same respect, tent of rights. as a con-

If bill of this contract upon can engrafted notice, take dition, because it was of which all must law, a public reason,'it for be- then, when the act of 1785 the same was passed; his comes a.condition of and whoever has contract; property every Court, it would use, taken for to this thus open public may appeal extensive branch of revise very jurisdiction jurisprudence, Is the considered, hitherto to the states. as exclusively belonging n Court the constitution antici- for this ? Did prepared the framers Will the with it? Not matters of it?’ be satisfied only pate public will be here, but many Why may things. brought kind not and is Massachusetts, one who claims to vote in denied right claim' that the of contract is for impaired, privilege, obligation his rests on the ? constitution not officers whose may Why in, constitution, are drawn qualifications, prescribed by question,. them, come for ? claim denied here redress rights, out of office, not a Why who judge, legislated taking away to, Such a would his this Court? construction salary, open appeal over, make this Court- the consti- preside alarming jurisdiction, and tution, those ás well as of the United States; the states laws the constitution a for be the of con- this would result part making would take more.than.the whole alone, tracts. The road laws time Court. the. of the But I rot for will dwell on this aspect pretension the decisions of this sure, has not been set and I am Court are up; decisive question. that

What then becomes even admitting jurisdiction, of 1828 did bill of Is it not act violate the plain, rights? therefore, or a contract is contract impaired, obligation ? States does the case constitution reach United mátter, acted courts of Massachusetts upon thejr decision is evil, or. final. whether wrong, good is taken add, use, I that where is' not property might but contract, in the exer- virtue of under, taken necessary It is a element cise of essential sovereignty. right, great SUPREME COURT. Warren Bridge rides over all that' and can necessarily never property, questioned. It is the to make where it duty every government compensation taken; and Massachusetts has made what she deems adequate suitable her fundamental law, and it is no provision part of this business into or insuffi- government inquire sufficiency nor what her ciency provision, exposition put courts. The does law; not lie in contract, but in thing püblic this Court has acts, never further con- than' to declare gone private Public acts, contracts, tracts. but nature of cannot be things, a rule action.

This case, therefore, to Fletcher little, bears if resemblance any Peck, Wilson, and New and and Wood- Dartmouth Jersey College In all .cases, ward. these and af- all the others parties quoted, held under acts, fected the states rights private Georgia, and New New Jersey, Hampshire attempted, repeal, respectively, had was, after vested. The raised in whe- each question case rights state, where it had to an indi- ther conveyed property rights its own If a vidual, state, could annul act. for conveys example, individual, to an can be absurd, land more than to nothing suppose title and it can annul its resume for such are property; grants So, also, Crowninshield, in the case of irrevocable. Sturgis another, that if one decided, a state promises- money pay law, release him from his contract without cannot by payment. there is a manifest cases, these obligation impairing abro- contract, for the 'whole benefit taken and the contract away, gated. take admitted, it is that the state has a in this

But right for whatever, and, that the highways; franchise any property is as liable to be seized Charles River property therefore, for use no The-taking, public wrong. for purpose.- of the act of for it been' held no has It is violation always taken, therefore, to this If it act, under that has been subject right. contract, both for lawful; act is it is consistent with right that a, instjead of breach of it. can be no of, is, matter which compen- only complained This does not has been made.- spring sation compensation bill of but is derived from contract, under law. public up if sustained, if; and on that alone can alone the claim gives at law, all. I this Court sustained Over branch repeat, TERM, Bridge Warren Bridge [Charles River et ah] no redress must be in the of Massa- tribunals jurisdiction, sought and in no chusetts, other place. result,

Such is has been taken.' On necessary property therefore, we no error discover which can be corrected here. point, But the no worse no condition, and have plaintiffs higher claim to than class of citizens who suffer indemnity, large by pub- roads, Rail lic improvements. perhaps, generally, supersede high- them; near and render and other ways to a stages, wagons, property and, view's, extent less valuable. frustrate the They lessen the great of all who on the income travel depend public patronage The business of communities, and the value support. large real diminished, but estate is there could be no seriously indemnity It is a mere misfortune, such losses. for such no persons or interest which can be over, travel public subject claim. convenience demands such public legal improvements, not to obstructed from such causes. they are. before I I must be leave this to declare dis- permitted, subject, it is no part my purpose or modi- tinctly, urge change, laws; nor to advance the arm opinion fication strong seize individual sacrifice it public property, I am aware that much has been said convenience. of this public said, there is that it has for the «ase; and ground defence of a which will on, short revolution unsettle principles stand pri- I them to am not caprice. unconscious subject vate rights, doctrines; such and I surround am sen- equally dangers as are denominated, vested to- sible to the folly.of urging rights, felt as burdens, to make them such extremes onerous grievous of the feudal inconveniences, institutions Many by public. force in have been still England, have acknowledged repu- there much wisdom I think in here; and cannot diated attempting institutions, our beyond of them where any' engraft to be the land. been law distinctly-recognised I I am with the this, But while vital say fully impressed impor- The- unceasins-- tance steady, protection'to private rights. giving . lie in protection elements liberty, firm public private great in association a free end political government, great rights. of our firm, obtain a and honest is to persons, unwavering'protection value; If for this, do it is oflittle we fails.to earnings; government (cid:127) it for consists Liberty chiefly want scarcely purpose; exactions; and no one can feel freedom restraint and arbitrary XI.—3 T Von. SUPREME COURT. Warren Bridge anxious for the sincerely

more of these preservation principles, great than I do. I am are fully sensible the constitution and the laws tlm shield under which we take shelter. are our They place to which we refuge- sanctuary must if we would cling, preserve —the I am public not, therefore, liberty. for rude hands upon laying them —I am not for these away barriers tearing great right.

I it, wish therefore, our understood,' that I distinctly place case within the of the law, and aid. I pale invoke no in its violence aák for no new or rules, but for a fair and principles exposition just of the laws; this, I know, is all we shall obtain.

Our case stands on what is I called, Court, contract; contend only that this contract, law, when construed the rules of as I understand them, after careful consideration, research will sustain no such exclusive as the claim. privileges plaintiffs I see constitutional no'great in.this matter; involved question is not a matter of law, constitutional whether the act of 1785 gives wide, or franchise, a narrow but' a into the simple inquiry meaning n of that act. The case If I do not else. mistake involves nothing I weight have shown authority, England grants construed favour This is strictly the rule in a public. and I here is privileges monopolies; hope entitled to as favourable a I consideration. All ask is that this rule shall be to the act of 1785. due to applied public justice, that it should be. I public policy, can see no to it, while objection do See much .1 coursé. I have had object opposite never fo but one in this matter, and all opinion has tended to investigation it Some suffer a decision favour of the de- strengthen fendants, and I reason, but it whatever, affords no for esta- regret; unsound rules of blishing construction, or for to the public denying accommodation a lawful way. Mr. Webster, in error, stated that the plaintiffs* question before the Court was one of a and was to deter- private right; the fair construction a contract. mined Much had been said to the claims of in error bring pláintiffs thé into This course of remark does not reproach. affect their right'to if this Court shall consider that property, property has * The reporter disappointed, he expectation what believed a well founded pf of receiving himself; a full statement Mr. argument, by Webster's made out or his notes, which, aids, large. with other he given argument more at could have TERM, Bridge River [Citarles al.J from them contract; taken violate a by and in a proceedings interpose where this has a case Court constitutional to for its right and restoration. protection been, is

It said.that Charles proprietors made the advances them in But repaid by building bridge. this is not which the Court has to It decide. is a question upon contract; if it so, is the where necessity question inquire million, have laid out a If whether the there plaintiffs nothing. contract, the is not what was the amount of was a question profit it, what was its from but derived however provisions; advantageous It is those with whom it was made. a contract for the annual re- time; a and it is said state, of tolls for period ceipt specified into existence, its law company by which by allowing brought break, tolls, contract, because amount of the tolls these act, that, the time say, portion by legislative large; not be in the contract shall force! granted, before; once court of The has been case argued superior onpe Massachusetts, this Court: and without state of who to the counsel before the present disrespect argued hearing, been exhibited on new and grounds. enlarged it.has said, of eminent domain has right argument, act; and if same away by cannot legislative granted, granted resumed, terms express grant. ne- against may'be state, in a of this been as- of the existence sovereign right cessity cases; as of a shown a reference- many to be serted which, exclusive to construct turnpike, gave between two all communications places, corporation, making of im- individual, introduction prevent would operate to an. intercourse, roads; rail thus be most ex- modes of proved interests, and a fatal extent, stay, tensively injurious community. prosperity hold ob- in error -They deny position. plaintiffs other means and that than a contract complete;

ligation Such a vio- violation, community. interests may protect to the confidence of would be fatal of a contract governed lation of all and would destroy security who property, in those govern; under it. derived “the Charles River two Bridge,” localities bridges, “ Court. understood They well the Warren Bridge,” travel, and either furnishes the same them accommodate line.of COURT, SUPREME Bridge.ot Bridge River v. Warren al.J [Charles convenience, and the all the facilities the line of travel requires. all that sufficient, is not fact, denied, one is shown the which is by That has over free, the become all travellers pass Bridge since tolls arc the no received of the Charles River it, by proprietors Bridge.

When the act the Warren was and the Bridge passed, authorizing was about to ter erect company plaintiffs bridge, applied the work court of Massachusetts for an superior injunction prevent refused,'on on. been done This was that had grounds nothing going which the unconstitu-' company presented question by of the law. Before the Warren in the actual tionality was Bridge the bill tolls, filed; now before the Court was and after- receipt bill, the of Warren wards Bridge supplemental proprietors actuaj under tolls; that charter being redeipt claiming was a with state, acted violation of the contract of the (cid:127) the Charles was proprietors River therefore Bridge, the constitution of the States. case is be- United now' against this Court, fore on this question. constructed, It is said that Boston has that many as bridges t so; This ex

by plaintiffs. mus is an necessarily Boston in the ocean. She is almost surrounded ception waters by sea, and is approached every where, but one a bridge. by part, It said that those numerous to no rise bridges given litiga— 'Hon. This is is, inference that one of these just by so/but has been fact, interfered with. In all cases where rival been it is bridges, bridges prior affecting put up; understood there that has been those who were agreements be affected them. by This was case with West might Boston It was those purchased by who make a free bridge. sought which would interfere with it. said, franchise, which was argument, ferry of Harvard property was seized when college, authorized the erection Charles River But Bridge. was so. A was allowed for the compensation use the franchise or its and no interruption; objection was ever made in that stitution. The is, inference just that had previous agreement been made with the the sum college; annually paid by of Charles proprietors was Bridge, entirely River satisfactory corporation;

Mr. Webster then into an went examination circumstances TERM, Bridge v. Warren River al.J from the had attended the erection main other bridges Boston; contended, cases, in all and he land to compensation been made to those who were affected them. had injuriously in the act author- the case Cambridge legislature, it, charter of the the Charles extended'the proprietors izing for the erection of another This compensation bridge. Bridge, taken for the tolls the line of travel. compensation diverting cases was there an In none these appeal prerogative,-and powers. superseding .of the Warren exhibits different history .entirely of It was undertaken on different and under state things. principles, It with a about a different clamour It temper. monopoly! began the to break asserted, was that had the public up monopoly right the was held Charles by which River that Company; a fiee had a to have were right bridge. Applications frequently on made the those and for that principles legislature purpose, success; bill, without five and the the years, authorizing during was first when it of Massachusetts, the passed by bridge, legislature the of the was veto When the by charter was rejected governor. the of actually as granted, passed legislature by majority many members mere were the hundreds body.

If for it had not -been the in the provision constitution of the .under which the States, United now ask for the plaintiffs protection of this it is Court, believed the law would not been enacted. Members of law, consented to the on the legislature ground if it interfered with chartered this Court would set it aside. rights, was, The that if law was a of the argument charter, violation would be of no avail.. Thus it passed.

But since its there is an of passage, eminent appeal right said, domain sustain it. It is take care! You arc on burn- treading embers! You are interfere with ing the state asking rights roads, to make-rail and modern improvements, supersede those times by their You im- past superiority! prevent progress essentia] to the provements, prosperity community! It would then that the existence of the appear of the provision States, United constitution which this Court called now has been upon the whole of- apply, cause done injury plaintiffs, the law passage authorizing Bridge. But for the belief that the be restored rights plaintiffs would to that existed. appeal provision,.the law would not SUPREME COURT. SIS Bridge Warren-Bridge River who first for the defend- The learned the case gentleman argued went the whole ants, length asserting without compensation. to take grant, making away if the are not satisfied with yet asks exactions plaintiffs gentleman are exactions? What They public? something unjust. for but have taken tolls plaintiffs passing bridge; to do had a their charter. right when the said the tolls but is it were oppressive; oppression, take in- was the charter to them as the stipulated given laid out the charter?

come under It is said capital pub- other; are on the case side, and the lie are on one plaintiffs raised, hands will be one, should one a thousand is decided way, this is not correct. The senti- but different; the decision on one side. It is not the defendants. case, is not ment, in this Boston, voted the Warren never The representatives Bridge. vested rights, there were existing ought thought They of Boston would have purchased city be disregarded. had been asked. The if'they Charles Bridge, property, it was dispersed or stock through community; anot monopoly. stand unblemished in

The honour Massachusetts will this con- or to her, no dishonour to her The plaintiffs impute legis- troversy. to know if law in wants favour Massachusetts' only lature. vested the Warren plain- Bridge, infringed make is so, if this she will tiffs; compensation. promptly the Warren the act say, The vio- authorizing plaintiffs and if this Court shall States; United lated constitution do will full to those state of Massachusetts declare, the justice so her been authority. who have injured have for said that the the defendants have . plaintiffs The counsel their have lost They loss but that prospects. golden sustained thousand worth three hundred dollars property all property; dollars. built, now not worth thirty new was before are the en- They are no' of the monopoly. The plaintiffs rights advance; had for of the which they paid property joyments entitled to law, were which, enjoy contract made by they aby called monopo- rapacious to come. They for yet twenty years Those what claim to hold have lists; purchased. when they have them; taken fronr who assailed this property, TERM, 1837. Bridge et Where, and with whom from them without compensation. taken in the transaction? to be found is the rapacity law of Massachusetts against monopolies, The the. provisions of James first. were statutes They are taken English terms, and contains the that statute same for it follows taken, so Thus the in favour of useful Massachusetts- inventions. exceptions neyer which has con- with that of is the same law England, as this before Court. The lan- such cases sidered extending “ “franchise,” but this is a not of the law monopolies;” guage .was raised has no thus the clamour which applica- a monopoly; It is of the in error. and with- tion plaintiffs unjust, property out application. the case. What

The only record questions .are presents they? bill filed in and after the

The was answer the de- original bill in, filed, the amended was issue fendants put only put fact, of law bill. presented original questions of Massachusetts case courts to' proceeded The according Court; of this and this case is rules exhibited, so fully equity the issues of law can be decided the whole of here. bill founded the of the plaintiffs: original On the act of the of- Massachusetts of 1st. 1785. legislature On the 2d. purchase, by plaintiffs, ferry right, to Harvard had college. belonged On the consideration for the

3d. charter to build paid the. of the charter for and the the act-of prolongation twenty years, by act for erection of say the Warren plaintiffs Bridge, the constitution of the States; United the act violates takes use, without' com- property plaintiffs public making for it. rest on their charter. They pensation defendants, answer, in their do not has been say property use, but taken rest on their charter:' and they say had a as it act, does pass infringe property complainants.

This whether the constitution the United presents question, States is There is no violated? other issue made on this record.

This state of the much excludes the matter pleadings been the counsel for the do has defendants. presented by They not of eminent domain. The present question plaintiffs might SUPREME’TJOURT. Bridge [Charles River v. Warren et al.] in the presented question court Massachusetts. They might have,said that their was taken property law, use; public was taken under the of eminent This domain. would right been a Massachusetts and one which could have been question; before'this Court. It is brought admitted that legislature takes Massachusetts private use, under property domain, eminent this Court cannot take of the case. cognizance If the had been so case before the Massachu- court put superior setts, that court could have decided that the were complainants entitled to were defendants bound to compensation, it;. make is Court, the law this confined must be parties on the record. The issue here is the whether questions only question the defendants have and have infringed plaintiffs, the constitution of States. violated the United was in While this case the courts Massachu- progress through setts, Court, in this it that one half of the depending appeared whole tolls tolls of the was taken Now plaintiffs’ bridge away. has This occurred the Warren become since has gone! a free bridge.

The Massachusetts have given plaintiffs of a at Charlestown; to the franchise and the right question is, whether this is suelva as that can be violated infringed? franchise is, therefore, The is. which lies con- thing grant, tract: and charter the Warren it has been in- tó if,-by Bridge, within the of the constitution comes relative prohibition fringed, is, to contracts. whether the had such a question plaintiffs This is.the franchise? record. only question A this Court preliminary objection proceed- made, is on one case the suggestion against as. is now the Massachusetts; state the state Massachusetts interested" he.- Cause, pro- only party bridge having-become said, state, this no relief. and it is Court can perty; against or. Court, individuals, A state cannot be a suit into this brought a corporation. bill not a per- state is the cause. against party relief and it is from them

sons who'built Warren Bridge; if the stand as and required; trespassers, and.those sought, persons law, But a suit under acted, is unconstitutional. after make commenced, it all who afterwards lawfully goes against TERM, 1837. River Warren [Charles There is no on the to it. effect themselves parties kind, this as a cannot a . excuse wrong-doer plaintiffs by change his with himself by property. parting of the ask a decree Warren against plaintiffs proprietors others; asked John Skinner and and a de&ree is no against Bridge, others. The raised to the by question objection juris- diction of case, is, this Court in this whether-the Court can proceed in a in which a state has an This cannot be case interest? asserted If were the law, success. the exclusion of jurisdiction 'States; would extend to all cases of lands the United for by granted in cases of such title has been the United States no grants, given, are bound to a doctrine would make Such overrule compensation.- of the the adminis- structure judicial government, prevent tration of its most functions. important

This has of Osborn Court, been decided in this in'the case question v. The Bank of United-States; 857; 9 Wheat. 5 Peters’Con- densed Reports,

This is the same with that in case referred precisely question Osborn, to. The state of Ohio hands claimed the money States, a an tax the funds of the bank of the United imposed act of the of Massachusetts claim the state. The state . tolls of This Court, from a law of the state derived casé, cited, declare it to be one in which the state is expressly So in had declared a Peck, Fletcher v. where deed party. Georgia lands, void; the state but the to the case were given by parties record, those-on the the decision vacated the directly although pro of the the Court had. yet ceedings legislature Georgia, jurisdic no will be case, tion. the state pronounced judgment against On if the Massachusetts. these constitutional question pleadings, out ? were could action of the Court affect the state fact, She is, in no She cannot be a to blow party party cause. a suit, and not be to its result. final state up subjected' Suppose should done, coin would not its it is money, congress prohibit being constitution; and a-law could not do Could prohibited by more.. the law be carried-into under it would be effect? Proceedings Court, state, before this an action brought agents against it,’or suit a contract party against making issuing so If suit money individual, cannot, -coined. you against whole of unconstitutional question powers acts of party, Von. XI.—3 U COURT. SUPREME Bridge et Bridge v. al.J for the pre- vital its constitution, provisions great and defeated.

servation government who do to the parties the Court can said, justice It has been of Massachu- court because superior have sought protection, in cases of a limited setts only jurisdiction equity. Massa- courts admitted, equity jurisdiction over the subject, it has all limited; but jurisdiction

chusetts is law of court of extend, as equity. which its powers in all cases court, full Massachusetts equity powers' gives 395. Rep. Pickering’s are made to which jurisdiction; subject, in of waste all cases law jurisdiction gave nuisance. nui- abate the Court

This for relief. This may bill prays general case, tolls; do a all sance, decree repayment In a to it. that, may to law and appertain equity, equity, according je nuisance, a the and deer compensation. court may enjoin against of the court of Massachu- all about the But this discussion can, has no here. This Court decree, to make a suitable place setts whether the act of 1828 does decree, declare, in their impair all can do; of 1785. This is the Court and it'is contract to nothing case, them what will be done court to which by the case (cid:127) In be will remanded. conformity provisions judi- 1789, this Court remands a case act of when further ciary proceed- court necessary may ings brought; court, else is in that this Court when will nothing required a give final judgment. Court are record, bound down

In this by the single law, under which the validity defendants question acted. to the main in the cause: questions

To proceed e claim to Th 1. plaintiffs setup exclusively, between Charlestown; or, if are not they this, Boston entitled they down such other as interfere with put bridges claim profits their privileges. enjoyments contended that termini iriclude exclude all not within must so far off, not to do a keep Every person direct place. that the plaintiffs’ rights. plaintiffs mischief say, ferry them the rivals. privilege excluding by That gave charter; have a franchise them which can- they gives rights, be violated of proceedings subsequent legislature. TERM. 1S37. Bridge Warren e.l al.J It. from the vain to derive any ferry right, attempt thing is a if it is what the it is. that a defendants say They say, ferry a-river; to ferries law never path over English relating force in This is denied by position plain- Massachusetts. ferries, roll of assertion, tiffs. In a bead support give ^ before whieh have been taken built whei away; bridges existed. This is statement. law of law of been the common Massachusetts always the de- Is theré contrary, .the any authority

England. ? such, not,-and of her court's There but it is cisions hoped it is the ancient fathers of 'the believed Have profession not.. Danes, Parsons, other doctrine? law; Sedgwicks, taught men; these been sustained Has contrary opinions? defendants, á distin-r the counsel the case referred allowed a of Massachusetts ferry right according lawyer guished in Massachusetts has law of Every judge the common England. inheritance; a an indefeasible vested held ferry right, (cid:127) if this us see is not the fact. Let like any property. reference will be made to acts in done, this is before But which are the record. of Massachusetts history early of a for twenty-one years. There is ferrjt Boston, 7th month, held at of 8th corte day “At generall boats between Ann An- ordered, they, put Cape It is sufficient tóale, to take as the court shall shall liberty nisquam, meete.” think across So, also, of a the river? there path

Is this merely grant on in a that it be inheritance condition shall ferry, an is a grant This to the court. is with submitted grant eotemporaneous general Charles river. over ferry the grant “ at'.Boston, corte of election the 10th of the At 3d general 1648. month, A. to this corte, certain that generall information there given

Upon between ryver, upon Naponset is no- Dorchester and fferry kept are to that are forced Braintree, whereby pass way, head of townes that are in those river, great prejudice partes, it, no man that wih unlesse there and that he be appears keepe ac- boate, and a at the house, land, commodated charge ordered, therefore óf this It is authority corte, that country: shall, full hath, him, and hereby John Glover given Mr. either it to tearme seaven person, persons, yeares, grant SUPREME COURT (cid:127) Bridge v. River or else to take way country, it be not any chargeable so forever; inheritance heires, his own his as provided himselfe and be most at such a as may such a price, be place, kept courte.” to.the for the pleasant general country, convenient Charles of a of a over there is a In the record copy bridge of which the condition the terms Watertown; are, river, near in This was tolls are for ever. granted making law of Massachusetts. acts This statute is later early character. The instances of such are of the same the legislature 446, 447, 448, 521, Pick. were cited from Rep. legislation 523.' In all these cases, hold the common law-of Eng- judges Massachusetts; to be law of that a land as to ferry ferries and a franchise and interest, is an indefeasible property. cases, which, then when a

Mr. Webster stated number . erected in the been an place had ferry,, existing compensa- bridge to the owners of the had been made He insisted, tion ferry. authorities, was as much as much the ferry these property, known to the laws any thing protection, object legal land. obtained their as a extent property some plaintiffs purchase It is not and down river. now to how required determine

up for the rival extended; erected the de- far bridge purchase of the Charles im defendants, alongside Bridge, from it. It is not now derived profits necessary- terruption That of the franchise. the interference limits is direct and to fix denied. Difficulties arise hereafter these certain, may is not fixing to a them, distance to establish limits, but it is necessary go certain, interference, and admitted shall examined. before that in London has been erected submitted, It is over been to those in- river without compensation having whose made evidence of this will be found may injured. terests on the Those show minute atten- works treatises many subject. British in all cases which private tion parliament, of a enactment statute. All who affected by persons may'be interested, the- have notice from parliament application; is made, where is done. compensation injury said, honour of maintaining principles distinguished is will arrest the left pdblic improvements, progress asked, in this case. so.- All is; This is not that is. plaintiffs shall be not made im- franchise Massachusetts has protected. TERM, Warren Bridge al.J own, she hás her subscribed those although liberally provement have been undertaken individuals In corporations. ¿nd been cases, these private respected; rights except . before'the has Court, case now Massachusetts her faith. -Recent kept her show acts this. In but previous every legislature this, law, made compensation provided for.. do not seek to improve- plaintiffs interrupt progress but ask to a ments, revolution stay-revolution; against on which rests; foundations a revolution-which is property attempted on the we resist clamour allegation monopoly: against legis- acts which lative have vested individuals- on rights principles the state, and to those who hold those under equal justice rights the law. provisions true, It is that before legislature rights plaintiffs examined, were still .the charter was but given; a the decision of committee of. the a judicial action. a full come Court, before this plaintiffs their failure before the notwithstanding legislature. to some remarks of the counsel of defendants, Mr. reply \yrits stated,

Webster under of ad proceedings England damnum, did not affect of ad quod private writ rights. quod, damnum the honour of the It issues before a king. grant- issued.'for made, and for the Private protection king. persons 'may claim the of the law in favour their protection notwith- .of rights, Questions of nuisance, standing are proceeding. always fact,, and must be- tried questions but no can -by jury; jury assess amount until the facts are ascertained. injury These are sustained in 3 Black. principles Com. 219.

Is the liberal construction of charters to them interpret against, of individuals, enactments of the law? The against course has been construe them in favour grantees, and. for his benefit. The whole of the enlarge provisions course -. if an But changed, opposite principle ask adopted-. plaintiffs no than fair more law; construction judicial more is re- what to; entitled quired théy but under a judicial interpretation of it said, has been defendants, for the- argument although

the holder of a franchise maintain an may action against stranger who interferes with it, without license; but he not. one against who ahas license from state. This is without he If authority. S 26 SUPREME COURT. Bridge Warren Bridge River et v. [Charles al.]

can claim it is his because of the fran- against stranger, property this will chise, and him in one. This protect proceeding against is and the can complete all, state no to against privilege give interfere with it. of the case The Rail Road v. Camden Amboy Bonaparte Mr. Baldwin, Justice in the court of New circuit

Company, sitting Jersey, says: “ The of of is not communicated the privilege exemption principal to the the is a state which cannot be sued at though principal agent, law or in and the officer in execution equity; agent, acting of the state, law the and the matter the suit was money subject in their of the defendant for the use actually treasury, custody the state.” Bald. 217. Rep. the ferry Charles River proprietors Bridge, purchased franchise from it became their Harvard property college, site, the with all the purpose erecting bridge, upon and the to be from it. It was derived purchased, advantages two hun- of the sum of consideration for it the was annual payment charter, be This, dred was to absolutely paid; pounds. non- excuse the tolls, to will accident no deficiency bridge, be to sum so payment paid. stipulated to was had while the protuable Suppose, building bridge to the would not tolls proprietors use ferry, have*belonged col- to There is no suppose the Charles ground River Bridge? ap- to out of the franchise. Nothing meant any thing lege retain meant to state that-the which will authorize supposition pears, use it;of the'franchise, allowed any part take a transfer abutments, at the extent of of it to the up putting successor is the on. The was carried bridge where places ferry full it, to its franchise; purchased the company college, state, ratified the extent, charter, purchase. and the hazard, was an great The erection undertaking exceed- was considered it, construct of the effort to result franchise be cannot, therefore, It supposed doubtful. ingly be limited. Nothing diminished, and its was enjoyment It can implied. so unreasonable expressed, nothing the build- was a evidence, record, that the party on the college had assented college stated president ing bridge. Massachusetts, course of decisions to it. According state, manage-' In that indefeasible was an inheritance. franchise TERM, court. As franchise, ment of with the ferries general the local authorities of Mid- 1785, from it was respected then that it was held under a dlesex, and Sussex. appear, would all other transcended rights. legislative grant,'which which was obtained was not ex- franchise college, cannot, therefore, and it be disturbed compact: tinguished by action of the legislature. It is the truth of deemed consider important, the of Charles the River Company, connection rights Bridge had, have, those of the and still an The interest in college. college it; and of the use the franchise is essential the to all by company, the for and more than those which it was held purposes, by the the The furnished was the by substitute college. bridge, pontage not, the the it was therefore, for for by loca- ferry; only passage was built, tion at the where the that the of the place bridge All were obtained. the as a of privileges the enjoyed part college the were When franchise was on the ferry acquired. bridge put up for all the been, same the had ends of ferry the place ferry, reasonable, extent but that the of the shall be in the just right of to that hands the which it was when Bridge Company, held equal the by college. taken,

The have been views which show that the fully state of made, in the full and of exercise her rightful Massachusetts legisla- of .the a the Charles tive River powers, grant proprietors Bridge, such, a 'contract. no and the was As by subsequent grant legisla- 'vested, a tion, could it be cannot be di impaired: vested. right Cited 304; Cranch, 9 52; 2 Dali. "Green 8 Biddle, Wheat. 1; Peck, Cranch, 136. Fletcher v. existed, a of was no

If revocation contract. power The state contract; as the cannot make such revocation is power incom- to' will existence'of a contract. petent case than that which' .Can rise stronger imagined, gave in Fletcher v. Peck? The contract controversy had been made in morals, it was fraud; it; to burn it was just policy, so, equally as a of the domain of the state of large part was Georgia for' granted 'this consideration. Court' But decided adequate in that case, had no power annul the legislature Georgia grant; and of this Court. grant by maintained judgment' The in which is involved, this case and upon difficulty success, defendants arises from two expect considering alike, things which are power different. making public grants, because SUPREME COURT. v. Warren [Cliarles al.J of the be made, should the interests community requires they domain. eminent taken property purposes, compensation Where is the of eminent exercise domain. The are legislature given; of their and the now- extent powers; question j’udges is, Court whether had the which has been before ex- case. ercised particular in. act of the the Warren two

By authorizing Bridge, First, done to were sus by plaintiffs. damage injuries of their tained from rival Secondly, bridge. infringement . toll' had been years, originally forty granted pontage excluded By receipt and this rivalship. interruption losses; tolls, the sustained full proprietors heavy their of Warren a free erection now Bridge, those, have has been destroyed. . beneficial right pontage ' Thus the of Massachusetts broken. state case contract of the United within constitution is entirely provision States. assertion, that in-a is the

What meaning grant govern- is it in of land? ment How nothing passes implication? grants- from the States less than a United carry Does grant patent “ u same—a land” carries They individual? mines.” arose by implication, passes early nothing principle, were now; of the crown than when when times, grants greater was favourites, abused; made to and when were they —‘and to restrain them to their induced courts words. their extravagance motu” scientia.” Hence insertion “mero “certa Hence shall another. of one not The carry thing principle, grant in a can be carried implication that grant, doctrine nothing royal franchises, 2 H. Bl. by parliament, does not grants apply and but one 2 Barnwell Alderson’s Reports, no»case 500: not to sustain the That case is authority been cited position. has it if the whole of case is taken is favour But here. together, The this cause. . decision there although right; plaintiffs lord Tenterden. much strictness in some is too opinions nature, in their be and all that neces- complex may Franchises with them, for their must pass sepa- enjoyment although things sary is incident to im- them, does not do not whatever require rate pass; Thus the incidents. ibrry pass plication grant toll; to take boats: cited Nott keep gave college, 393. M£Cord, TERM, v. Warren et al.] said, law

It that this be as to individuals, has but may good it not ease of a state —authorities for this that will operate posi- If a of a franchise sustain an tion are can required. grantee action individual, an for to his or an interference an. injury property, against he with his not why may property; against grantee govern- ment, thus The case is who interposes? stronger govern- against ment, than The received against stranger. government consideration for the and there is grant; implied obligation of it. protect enjoyment rent; be seized for

Ferries are They may they may property. be will; sold: and it is said may yet govern- be-devised they them from their for their ment take away proprietors, grantors- be taken; Let us some which will allow such see principle property private yet regards private property, respects rights, faith. public tolls; carries, The of a carries and it also for protec- ferry law, and of tion, the may keep principles justice- grántee It is one, him without- the down vain competition. give injurious must or none is given. Both intended other. given, grant benefit, risks, as a as a remuneration advances capital, for such not as name. The means a mere ordinary compensation The franchise exclu- are not sufficient. necessarily advances implies . sive beneficial privileges. ferries their charter.

It under law of took plaintiffs it held the extent of the that under whole considered They then one Charlestown There was but between ferry franchise. ferry had whole and this they It ferry acquired; and Boston. rights, for. If a. refers to carries another paid grant; been n'o in both. But there had refe- which is contained suppose other; same and to it would the same carry rence to any rights, e'xtent, or more. The expense erecting bridge, keeping than (cid:127)in is much order, setting up attending greater in order á ferry. keeping reason for accommodation taking promotion done held under a cannot urn

away privilege, grant. legal must be These respected. others. rights rights justly be diminished. derived from these shall Suppose income of erected, had an act autho- the without the bridge a can it; act it? to A rize would grant .How protect subsequent aby be affected lawfully subsequent grant impaired; injuriously XI.—3 Von. X - SUPREME CGURT. River '{bridgev. Warren {Charles al/] B, which interferes the of the enjoyment

to. Once prior grant? always granted, granted.

What would assume, tribunal position judicial that would construe grant differently, to it. raise an according'to parties you Can. it, and not do so implication against against government? Impli- cation is is when a meaning thing construction —construction —and deed, inis it is and force, of the instru- meaning, purpose If ment. are these parties cannot be To allow changed, changed. another, to be was to built, take of the tolls the first away ’ In of the Was a violation of the bridge. support position, thi^ all .of the rights plaintiffs, court opinions judges Massachusetts, from which the’case is are to. brought, appealed that the They say, charter granted theffegislature binding it, and cannot be that, to they say, whatever impaired; extent the must, 2 Mass. 146. But the Warren goes, supported; .grant Rep. charter, does for it impair takes.away tolls. What then becomes legislature? This is reserved of the court of solemn Massachusetts. Then there is adjudication reservation. There is This has implication been so government grants. Massachusetts; 4 held Mass. 522. It is also the law of Rep. this Court; Case, Dartmouth 4 Cond. College Rep. held, case, court below this that whatever was be- granted at Charlestown

longed grantee; ferry was granted and that the law to ferries, the college, England relating prevails Massachusetts; that can be for taken use nothing without public to be so construed compensation; always as to grants is essential to the what convey enjoyment thing granted, impaired. cannot superseded, grant these support Mr. Webster read parts opinions positions, judges Massachusetts, court delivered case. superior stated, the character of this proposition grants which. re, held contain ocation. This cannot plaintiffs cannot be treated or be. considered as mere Beipg grants, are contracts. In this laws; was being grants, to be beneficial to the á it contained covenant grantees, intended should continue ánd forty, that it afterwards for seventy years. a consideration and is now paid, For paid; public, col- expenditure Harvard large bridge; constructing sum annually. of two hundred But lege, by pounds the-legislan TERM, Bridge et Bridge Warren al.]- River v. [Charles to make the every grant unproductive; ture now done have thing from-it. the of all holders deprive advantage the the Charles' River the proprietors Necessarily, grant of the of their a privileges contained enjoyment guarantee Bridge would every construction contained it. Any against acts, derived from the public property, principle tolls, a tb take rests. after ferry, right Suppose, grant boats; at the and expense it by establishment grantee, so as at the same free had -been erected place, contiguous ferry a ruinous of the first ferry, by competition; destroy to. profits It said that still to take tolls re- would this is the.right be proper? is it is true; franchise. This and then mains in the first inquired, franchise, said, it is No is what has done? away; been taken injury remain; tolls remain. all the rights granted admit all true, is for the defendants will pass co.unsel dish of the first the toll free but yet they say grantees ferry; over e free, is who have opened the hands thos no.t touched by remains. of the rates be paid, yet ferry; notice tolls fact. Under the But to all this the plaintiffs simple oppose the constitutional franchise, of a plaintiffs they possess grant down all the whole time of charter. keep competition, during authorities, unbroken for This has chain been established by here, well as in alike, as and this many years; applies grants of toll taken at the franchise; It is a dollar every England. toll erection, Warren and the since temporary-use Bridge, franchise; and of our is of the profits part proper legal (as interpreted thus the guarantees conveyed guarantee, grant, been broken. the Massachusetts courts,) of the Mr. into a further examination argu- Webster then went of the ob- defendants, into a notice ment of the counsel in the defence. fallen from-them which had servations The is received said, enough; have plaintiffs, compensation had rea- q have very profits already large; but is reasonable so. This Nothing sonable compensation. one party, It is not reasonable of the contract. fulfilment themselves, as to depart compensation; should judge in its contract, meaning.- is definite plain terms an franchise. extinction, it is There no argued, was is, second extends expressly swer bridge that the act authorizing the the consideration it; recites charter, thirty years adding SUPREME COURT. ' for thé received same. In this there is guarantee had shall no law to the state It is not pass impair contract. true n line travel, that we ca that is property meant, in' the franchise Gov. Winthrop others, granted by from Boston to Charlestown. The- passengers transporting valuable, .was franchise concentrated at transportation because which the at points plaintiffs’ erected. us, construction said, which we demand, it is not valuable. plaintiffs the issue is with say otherwise* Court. held as a of It is cause alarm that up the claim a plaintiffs per- franchise; to this and that when the of petual thgir charter wilLfall back their claim to bridge expired, upon the ferry. do no such When time.comes, We that it thing. becomes the pro- “ the state of Theirs then It is,' again. Cawdor, Glamis, perty King* wished, And it were to have been all!” the that defendants’could until to wait that time load content have'been arrived.

The a analogies tavern, street,, a mill, &c., have in course of the the been for the put argument defencé. But all were false were these not Théy franch”-es. analogies. Not the in government. Then there is a based on the long argument, alleged policy Massachusetts, in to public There is regard highways. Mr. nothing, Webster situation of matters, in argued, re- state, the. of any line of adoption quiring particular The policy. roads excellent; numerous and are no trouble is experienced main- them so. There are cases taining requiring peculiar policy, or broad nor to be exercised over great them. case,

This formed an the particular to usual exception caution .ex- Massachusetts, in ercised by matters of this upon kind. legislating Ever since this act within these two passed, nay, years, legisla- “ ture has a charter to a for the granted erection company Hancock Free near the West Boston from Boston Bridge,” to between that avenue and Cambridge; Canal down. bridge,'lower width; to attend jict prescribes draw, &e.; the. obligation makes one; free the.bridge order, &c. corporation keep.it all For this, look for their compensation-in advanced value of their act, And in this contiguous property. very corporation are directed to make estate, of real compensation owners whose liable property the erection injury by ap- said bridge; TERM, v. Warren put to mode are to be praisers appointed according ppinted then act, if to their de- ánd not made appraisement, according act cision a section country. provides And jury if, a certain void, its to be before period, proprietors provisions sell out their of the West shall Boston bridge, according bridge to be parties. estimate appointed language appraisers and franchise.” is, sell out will bridge such proprietors, “ bounds, us, off metes and Now, required can this be set much for the And so relation our “franchise?” “policy”’and Massachusetts, as to franchises! of the legislature understanding al- plaintiffs pretended argued, Again, own of their been the interpretation rights. uniform ways On. was set Webster, Mr. this same up. answered contrary,, then ac- ferry, building franchise.of has ever since been same principle knowledged: recognised and by plaintiffs. and acted upon, by legislature, which, it had no one other there was though And subject, bearing whatever, bar had been made a deal inof, the case at great upon Some counsel. observations defendants’ had argument it with the of so advanced, way novel connecting notice; And this however, was, some that in kind, as require, did but exercise the Warren Bridge, chartering the This domain of state. over the eminent de- power power the and that state cannot abandon inalienable, it; as cribed nor being bind itself to covenant, or alienate transfer it its own grant, wise, hands in Thát it cannot tie its in- any way. up to any regard domain. its eminent defendants, the course of the one of

In the their arguments had a case to Justice the learned (Mr. Story), honours counsel put a rail like the road (Mr. Greenleaf), Suppose following: corporation the Massachusetts, a charter at hands the state'of receive that no inserted, was other road should an express provision charter, of- ten the duration within miles of the granted during road. road is built and Did hold, he opened. proposed that], ’ covenant, that had subsequent notwithstanding the’ to of the road, first, another within five rods power without faith, thus other than the any charter, compensation, given of the state And learned of Massachusetts? counsel had replied, he so him, that did did This struck as it so hold! say, must have struck Court, most doctrine. startling as COURT. SUPREME River Bridge v. Warren . Greenleaf here .that stated, such case, the faith of the

[Mr. of Massachusetts to state pledgéd indemnify parties';,by take, full for whatever compensation the state property making might for all the which should be done to It injury private rights. Court, not presumed by. would b.e faith the state would broken.] to that

Mr. Webster he first proceeded say, wished question in relation of the counsel; defendants’ how was, put, position domain, eminent as can thus construed, be limited power two sides, road,? should it fall merely, not Why itself, road follow to compensation ? It is grantees of the same so, alike “eminent parcel domain.” And part bar, if that the case-'at to erect another power gives own, our does it not beside take thelat- why give equal right also ? ter, domain is a part

Eminent resides in sovereignty, the sove- what it is people; portion granted reign legisla- —in them; what not .ture, remains with the granted, belongs of eminent domain Is as power well restrictéd as people. other It is restricted state, constitution of power? a surrender of it contains erécted government It asbe well regulated constitution. restrained and. by provi- constitution, in the power sions originally people; exercise must be and its according provisions. to have a idea of clear what this necessary same power domain is. What then do the counsel for actually

eminent the de- mean, when that the state cannot fendants transfer its say emi- domain? do-not mean its domains, its They nent certainly territory, here And he cited the-case of the its lands? land in' government northwest, as a west and that could not be the proof meaning counsel. weré the eminent domain in They sense, one sense, can, and does country; them government pass But the other rule, sense was, away. power, dominion two, its over These ideas territory. state must not be blended in this state power domain, over eminent investigation. means over government property, public private, rules and various What is qualifications. under meant by go- with its inability ? It part eminent domain can vernment’s part it, with the reserve the over those thing, power extent’of to. adverted already qualifications public pro- Taking private TERM, 1837. 535 Bridge v. Warren Hiver benefit, state, is exercise for by power public j domain. its eminent But franchise not granting over is state 173, 244; sec. Vattel, of that Cited an exercise page' power; page 45.. sec. franchises. This is done its may sove- by ? What it do those franchises What may power. power

reign them ? It it over after have domay what granted just do, is more. It is restrained it limited nothing same by' it existence from more. instrument gave doing this is, what restrictions are found in on power question it, Massachusetts: constitution limita- reference bewill found. The tion exer- powers may legislative it. for In the constitution cised it is by taking property, paying declared, shall that be taken property .not expressly public its for. without being paid (cid:127) In Baldwin’s Court it is said, Circuit that it is incident to Reports, take every government, sovereignty private pro- use; but con- obligation compensation make is perty with the The Camden comitant v. right; Bonaparte Amboy Road Baldwin’s 220. Rail Company, Rep. can this then which has been

How the defend- ground, taken ? be maintained The' whole ants show that the pleadings right was not case, eminent domain involved when before the court It is it. Massachusetts. too late now to is There present al- been taken, and com- legation property plaintiffs made for-it. pensation

The defendants seem to that if the say, property proprie- of the Charles River has been taken under the tors right, domain, the case is eminent without a But remedy. denied'. domain, under the of eminent taking privilege limited"by shall true, be made. Nor compensation provision; with a legislature may part portion eminent do- Thus, in Wilson’s main. to tax lands state of Jersey, New surrendered The State of New legislature. Wilson, 164; 7 Cranch Peters’ Con. Jersey Rep, Rep. their, conclusion, Mr. said, Webster plaintiffs placed reliance established this ho- authority precedents Court, nourable in the course of last in support thirty years, that constitution which secured individual property against legisla- and that now asked the assumption: tive conscience enlightened COURT. SUPREME Bridge Bridge v. Warren et River [Charles in their com- have not succeeded tribunal, if sustaining they as not, must, they and constitutional grounds: upon legal plaint satisfied with the decision remain citizens of republic, good the Court. Taney Court. the of the delivered Chief Justice opinion

Mr. character, are of in this case the involved gravest questions deliberate to them the most anxious and have the Court and given of the claimed the The value plaintiffs consideration.' af- no doubt be seriously and amount; many persons may large interests decision which the Court by any in their fected pecuniary the raised as to the and have been questions may pronounce; states, to in relation the of the several corporations to the with chartered, consequences; only are important pregnant the franchises, but to are concerned the who corporate individuals sensible that exist. Court fully which they communities on them by the conferred in exercising high powers their duty, it is ánd States, United to déal with these great constitution the caution; far as the utmost interests guarding, extensive the at the same time so, to do property,-and the power from the encroachment on reserved abstaining rights' carefully states. to record, 1650, from the that in year

It appears, Massachusetts, of Harvard “the president college granted to from Charlestown dispose ferry and power,” liberty otherwise, in the behalf for the behoof of lease or and Boston, by under to hold that, continued grant, college college: its lessees or and to receive ferry by profits agents, keep In the last mentioned was 1785. pre until year, petition itof others, Russell Thornas legislature, stating sented ferries, river, Charles over transportation by inconvenience would result from advantages bridge; pray the puolic for the be incorporated purpose erecting bridge ing between Boston and Charlestown was then ferry where place March, to this on the 9th of petition, Pursuant legislature, kept. “ act the name of The incorporating company, by passed the Charles River men Bridge,” purposes Proprietors Under this charter the em petition. company.-were tioned “ erect where the was then ferry powered place tolls were certain charter limited granted, kept;” TERM, al:] from the first forty years, opening bridge-for passengers; commenced, the time the toll until the of this term, expiration were to two the company hundred-pounds, annually, Harvard pay ; at was to expiration forty years college bridge “ the-commonwealth; law (as property saving expresses it) a, the said annual reasonable university, college compensation, the annual income of the háve ferry, received they might not the said had erected.” . built,

The for was accordingly opened bridge passengers was June, of 1792, the 17th In was on the charter extended to from the the and at the seventy years, of opening bridge; expiration time that it was to to the of commonwealth. The belong corporation of to the the annual sum two paid hundred regularly' college all of the duties on them performed imposed pounds, by terms of their charter. the the of

In Massachusetts incorporated company the name of The of Warren the for the Proprietors by Bridge,” “ of river. This another over erecting bridge purpose bridge Charles rods, sixteen at its commencement, on the Charlestown side, is only of the the commencement of the from bridge plaintiffs; their rods at termination on the Boston side. about fifty apart who either from over travellers Charlestown pass bridge, proceed of the travel roads receives many square, great leading the and the from and travellers who country; to and passengers go Boston, used to the Charles River over from and pass Bridge, the Warren this before erection of the through square, Bridge. charter, the Warren terms of its was to be sur Bridge, soon of the state, as the the expenses proprietors rendered reimbursed; but should be this building supporting period to exceed six from the time not, event, the years com was toll. commenced receiving pany filed,

When bill the the case was Warren original Bridge built; the bill not been filed after had passage was in order to obtain an law, erection, and injunction prevent for bill, relief. The as a among things, charged ground general relief, that the act for the erection of the Warren for Bridge impaired of the the commonwealth and the between obligation contract was therefore Charles River Bridge; repug- proprietors States. Afterwards, the constitution the United nant supple- bill was filed, had been so mental stating bridge then far

Yol. XI. —3 Y SUPREME COURT. Bridge v. Warren et al.] travel, it had been that that divers opened per- completed, over, toll, and thus avoided- the had passed payment sons otherwise have received which would plaintiffs. bill' admitted had been that answer supplemental but that foot could denied that far pass; completed, passengers so' the workmen had but superintendents passed and. persons oyer consent.- . this state cause pleadings, court for the supreme county hearing judicial came Massachusetts, term, at November Suffolk, commonwealth that the act decided and the court 1829; incorporating contract with did impair obligation pro- Bridge, Charles River and dismissed the com- Bridge, proprietors case is here writ error from bill: and the brought plainants’ state, that it understood however, is, decision. proper and that court Was upon question; the state divided equally .stated, was the bill above decree ground' dismissing court, for the enabling by majority purpose pronounced before for decision question bring complainants Court. here, admitted, since the filing

In the argument of toll had been received bill, a sufficient amount supplemental to reimburse all their expenses, of Warren the proprietors state, the and has been the that the is now property bridge and of the the a free and that value granted made bridge; franchise this means been Bridge,' of the by Charles the proprietors entirely destroyed. material, deemed these ‘facts If ought the complainants ecourt, be a bill; before stat been by supplemental brought cannot notice in Court,

and regularly this pronouncing judgment, of this the which the Court take these But in view them. subject, would not in their de circumstances influence additional degree true, are conceded to be the case has And and cision. that and has been for on the controversy ground, long argued it;' and all desire final end as it of and parties time is. depending, them, that the on Court decide which this principles of importance misunderstood; not the case will be treated in the should 'opinion ifas these delivered, admitted facts were before us. regularly now deal of . evidence has been offered to show and A the good nature extent the also to show ferry of right granted the'college;-.and times, the clairbed of by difierent rights therbridge proprietors at. TERM, Bridge Warren Bridge v. RiVer charter; of their and the bv entertained opinions by virtue commit- others, and of the But as tees legislature, upon subject. these do not affectthe of this it is Court, circumstances unneces- judgment them. sary recapitulate insist, in error two grounds: 1st. .plaintiffs mainly, That upon of the of Harvard was in 1650, entitled,

by college virtue grant per- to the between ferry Charlestown petuity, beeping and Boston; exclusive; that this that the had legislature another to establish the same line of ferry' travel, of the becaiise.it would and that rights infringe college; these of the in the erection of the under bridge place rights, upon ferry, “ to, were and became charter transferred in 1785, the: vested of the Charles River. and that under, Bridge;” proprietors of the of this .transfer ferry right, virtue rights travel, were as exclusive of' line as the company 2d. That independently ferry, ferry right, act? and 1792, 1785, Massachusetts legislature of true that the construction, necessarily implied would not one, a free especially authorize another the' Side travel, same line of this, franchise placed whereby “ Charles River to the should be proprietors Bridge” granted value; of no error plaintiffs contend, that rendered and of the charter to the college, ferry, proprietors on the state; both contracts and that part of the bridge, of the Warren in the erection law im- authorizing both of of one or these contracts. the obligation pairs form in that in the which this case comes clear, It is before very state-court; to a plaintiffs writ of error us; claiming being must themselves on the of these place under either rights, ground themselves contract, principle, and cannot support . settled It is well vested decisions law divests rights its character, law retrospective state Court, may the constitution of not violate yet divest rights; vested of a States, unless it also contract. obligation impairs United Court, Mathewson; 413; Peters, speaking Satterlee the article in them, then before interpreting law. the state to the states forbids pass which of the United States constitution the lan contracts, uses of following impairing obligation laws itbe so. But be retrospective; “It state is said to (thd law) guage. of contracts, laws do not obligation which impair retrospective SUPREME COURT. (cid:127) Bridge v. Warren of laws, the character ex facto are not post condemned partake . instrument,” of that or forbidden by (the any part constitution And in another in the same States). United the Court passage “ however, Court, most say; upon objection, pressed for the that error, wás, relied counsel by upon plaintiff this act was to which were effect of divest vested law in rights There no Satterlee. constitution certainly part States, ‘"United which to a state this no law applies description; r are this, court, we aware decision or of circuit condemned such a law' this effect upon provided ground, not to of a contract.” The same impair obligation principles Court, were reaffirmed this others late case Watson and Mercer, decided in 8 Pet. “as to the first (say 1834, point, 110; it is clear that this the Court,) Court has right pronounce the; void, act of state as constitution contrary States, United mere fact that it antecedent vested .the divests constitution of the States does not property. rights United. the states- from laws, but prohibit passing retrospective generally;- facto laws.” ex only post Court, decisions of

After these solemn it is that the apparent in error cannot sustain here, themselves either plaintiffs upon or the charter ferry bridge; upon vested right, ground been divested property -And legislature.' claim under the whether or the they ferry charter ttf the right, must show the title claim, they was they acquired contract, and that terms of contract,' have been violated to the Warren words, the charter must Bridge. they had into a show that state entered contract 'them, or those claim, whom establish a free under at the 'place Such, erected. and such where the áre only, claim, can which the in error' relief in plaintiffs principles case. of the-

The nature extent ferry granted col- Harvard. must the laws of depend upon Massachusetts; and lege, character extent of this has been discussed- elaborately at before, But in bar. which the .the view Court take the case them, is not on these necessary 'express any opinion questions. For that the and the assuming Harvard charter college, were both contracts, Bridge company, ferry right as extensive and for; contend exclusive still plaintiffs TERM, Bridge et Warren Bridge v. aL] River [Charles unless it the can be bridge, granted cannot enlarge privileges as- ferry-have, by Harvard shown, that the college rights to the transferred been proprietors or in some other way, signment, in existence, vested in and still remain of the Charles Bridge, in which were held and en- they with that them, to the extent same was built. before bridge college joyed Court, It upon- plaintiffs has been pressed strongly are now held error, that still these existing, rights exists, If this franchise still there must of the proprietors bridge. and to it, to use be authority keep ferry. somebody possessed set a the old one was Who could lawfully now where up ferry kept? in the same abutments The was built place, occupied bridge The in boats, the ferry.. transportation landings passengers from was no was landing, longer possible; ferry landing if a as as of nature had made destroyed, effectually convulsion .there The then,, land. exist, ceased to dry a-passage necessity, ferry erected; soon as the was when itself ferry was de bridge which were incident to it, how can be stroyed, rights supposed if had such, survive? exclusive must they follow the privileges, of the no and can existence without if ferry, it-*-and legal fafe had been ferry due and right assigned by college, legal form, to the themselves proprietors they bridge, extinguished when erected the in its It right, place. is not bridge sup one, posed, by any company Bridge right keep . such No claimed for them, nor can ferry right claimed for them, under their charter to erect a it is difficult to ima —and can be how held ferry or an gine by corporation, individual, who have clear, It is keep ferry. the incident must follow the fate of the and the principal, connected privilege cannot survive destruction of property, the-property; if the in Harvard ferry and had exclusive, college assigned proprietors exclusion privilege could ’not in the hands of their remain those assignees, assignees destroyed the ferry.

But what can the in error ground plaintiffs contend that ferry rights have been college transferred proprietors ' If bridge? have been thus transferred, it must be some mode-of transfer known to the law; and the evidence relied on to if, can be out prove pointed record. How was it transferred?' that there ever suggested was, fact, a deed point is. eon- SUPREME COURT. . Kiver by the executed Is veyance college'to Bridge company. there in the record from which evidence conveyance may, upon before Court, so far presumed? testimony principle, legal the foundation for such it in the a.presumption, repels laying most terms. positive petition legislature, does not which the charter was nor granted, suggest assignment, on the or consent and the part peti- any agreement college; institution, the wishes of that tioners do appear regarded their to ensure their success. as means necessary They place by any on considerations of interest and entirely public public application across convenience, of a communication and superior advantages in instead a The a Charles river by bridge, ferry. legislature, that charter, show, law, of the by language granting The assumed by preamble on the petitioners. acted principles “ that is utility;” will and recites bridge great be for which the law incorporates reason they passing only assign, on "not depend of the charter is validity made company. or surrender nor of of the the consent college, assignment weré one as if it deal with the and subject, their part; were as if the own and ferry right within their exclusively power, be but to to the extinguished company, be transferred Bridge not to that the state by on the to have acted principle, and they appear domain, and eminent its powers sovereign virtue had thé in their bécause, of the judgment, franchise ferry; take away ,a better by be promoted- would' interest conveniénce public, they proceed that principle the same upon place; bridge thus for the franchise to the college, make a compensation pecuniary of a continuing reservation ás there is an -express taken away: shall the bridge when to the become college, compensation pecuniary for the restora- and no state, of the whatever provision the property was intended no such it that of the ferry tion is.evident right, with all its privileges was' ferry, or continued. to be reserved was money end, compensation an at be forever intended'to this, arrangement, acquiesced lieu of it. college given consent. was all done with their record, in the there proof, would keep to the company Bridge Can a deed assignment circum- under such hands, be presumed in their the ferry rights alive the Con- law of incorporation, not the stances? petition, Bo made, for it perpe- to the provision of the pecuniary sent college to the of-its rights notion of an assignment repel tuity, TERM, 1837. Bridge Warren that, intended every proceeding, party and prove company, were, be resumed franchises, should whatever With individual, held corporation? no state, longer be for us, there be before presuming can ground such evidence was no reason con- There to the plaintiffs. conveyance it; and the reason was every arrangements There against veyance. could not been carried to the charter 'by proposed were extin- effect, ferry entirely unless into full guished. of the two hundred said, pounds payment however law, gives proprie- to the college, provided

year claim to be treated as the tors of the equitable assignees substitution, to-be- interest; and principles, their chancery all their clothed with rights. This is obvious. sum to this annual was

The answer argument paid tolls, be out intended to com proceeds tolls,- amount of collect. The were authorized must pany be a view this incumbrance, as presumed, graduated to which the well to every expenditure as- company might -of charter. The under tolls to- provisions were subjécted, and it was intended that collected from public, expense should be borne to Harvard college annuity public; borne, it from the that was so amount it is manifest it is ad which the was received, until erected. Their mitted sum, can them no pay-that give equitable agreement,’.therefore, the as the to be assignees college, certainly can regarded foundation conveyance; furnish no as the presuming pro are-neither nor of the the bridge legal equitable assignees-of prietors ¿oí the it is franchise easy perceive the how ferry cart be college, if it claims, even still in aid were invoked subsisting privi state, not been resumed the and had. for the by lege; purpose bridge.in place., . building-a the can extertt of the

Neither pre-existing ferry right, whatever been, have influence the any have construction upon may the of. for„the charter -It not', means, written bridge. by any follow, .does that, Massachusetts, because in 1650, legislative-power may to a justly favoured granted seminary learning, exclusive Charlestown, of' between Boston and ferry would, in 1785, same extensive another who give privilege corporation, were about to erect in the same The fact that such place. bridge tight SUPREME COURT. v. Warren Bridge et was to the cannot sound granted college, by rule of any construction, be used extend of-the privileges Bridge company beyond what the words of charter ffhe naturally légally import. Increased population longer experienced the different legislation, character of the which owned the corporations, from that ferry which owned well have induced a in the bridge,.might change policy state in and as the franchise of respect; and that of ferry, are different in their nature, and were each established by which no words to separate grants, connect the privileges the, one with th*e of the other; there is no rule óf privileges in- legal would the' Court terpretation, which authorize to associate these and to infer grants together, intended to be privilege conferred, because it given Bridge company, merely had been on the The charter to the ferry. is a written instrument itself, must and be speak its own terms. interpreted by

This us to the act of the brings Massachusetts, 1785, which the were by plaintiffs incorporated the name of “ The of the Charles River Proprietors here, Bridge;” and in the law their charter, that prolonging we must look for conferred, extent and nature of the franchise plaintiffs. Much has been said in the argument of construc principles which this law is to tion be and what expounded, undertakings, state, of the- on The Court part implied. think there serious that head. It is difficulty can of certain to a franchises public and in private corporation, matter .a interest is where concerned. The rule construction in settled,.both in is well such cases the decisions of England, In Barn. 798; & our own tribunals. Adol. the case of Pro Canal others, Stourbridge. against Wheely prietors “ been made the canal under an act of having court’say, parliament, act; are derived plaintiffs entirely This, cases, is’a like between a many bargain adven company terms of turers public, expressed sta cases,-is rule of construction in all such tute; and the now es fully this; that to be in the terms of contract, ambiguity tablished and in adventurers, favour of the- public, must operate against that,is can claim not them the clearly, plaintiffs nothing given and" the doctrine thus laid down is sus the-act.”- And abundantly itself the authorities referred in this case tained by decision. The one, imagined, a as could for to the strong, giving wás as well TERM, 1837. .[Charles tolls to the canal company, by implication, right they .demanded. defendants, had Their canal been used considerable very in coal. of all extent, quantities large transporting canal, were secured the act of expressly navigate persons not so could them from company prevent parliament; using to be Yet, the toll demanded admitted reasonable. as it, and canal, levels and did used one of the only they- pass through n locks; statute, in to exact toll, had giving right give “ one or it for more passed articles through locks,” to toll for and had said one of the nothing navigating toll, in levels; the court held that to demand case, the latter were not not be entitled could to re company implied, for it. This was fair case an construction of equitable cover for an if such 'of a rule of act con incorporation, implied grant; law of that in a could For struction ever permitted description. had at the the canal been made expense defend company; of the fruits of their labours, ants had availed themselves and used own their . Still the extensively profit the canal freely such a toll could not be because to exact was not implied, privilege in the charter. found done, our as we have from system, jurisprudence

Borrowing, in other law;' adopted, every civil and and-having English statutes; construction of rulés for the there criminal,-its any thing in of our situation, or the nature political our local institutions, -the should lead us where depart, principle corpora Are we to acts of are concerned? apply, tions incorporation, from that of English law, and, of construction differing rule in one of a charter make the terms states, mor implication, than act of the. parliament, unfavourable framed public, would be in an words, sanctioned same court? English Can -for this particular class of reason-be'assigned excepting any good from the principle; cases operation general introducing favour new and adverse corporations, rule construction and adhere to rules of construction we known to adopt while case, without law, in common every We exception? English cot;- and it would -a if, while present singular spectacle, think limits, within strictest England réstraining, spi courts in nature and exclusive rit monopoly, privileges monopolies, them confining plainly corporations privileges given charter; the courts of should be found country enlarging Z XI.—3 Yol. SUPREME

546 COURT. Bridge v.. Bridge et [Charles.River implication; these privileges by statute more un construing to the and. the favourably public, than community, done like would he in a case in an court English justice. left to.determine, But we are not now first the the rules time, to be which construed in by this The sub public grants are country. Court; considered in this already and the rule of con ject stated, struction, established. above In the case fully of the United Arredondo, 8 States v. Pet. the cases this leading upon subject are collected the learned by who delivered together judge opi the nion of and the Court; that in the principié recognised, grants bythe public, passes by implication. nothing is

The rule still more stated in clearly the case plainly in 3 Pet. 289. Jackson That was Lamphire, of land grant by and in state; the of this doctririe of speaking covenants in implied state, Court use the by grants which is following language, case at bar:—“ applicable contract made strikingly only state, is the to John Cornelius, his grant heirs assigns, in contains no the land question. patent do, covenant to or not further land; to do act and we do not feel our relation case, to in this selves at create one liberty, by implication. not, act, state has the force of it does impaired not grant; take the land from the attempt profess Cornelius, assigns to one not Rim; it under neither claiming does the award giye effect; remains in full force; produce property his held the state asserts no grantee, claim to it.?’ conveyed rule of construction is also stated The sáme in the case of Beatty 4 Knowles, Pet. 168; v. The Lessee decided in this Court 1830. Court, case, That a opinion delivering say: —“ limited those strictly exercise of corporation powers it, conferred will on denied. The exercise of specifically franchise restrictive corporate being individual-rights, cannot letter act beyond spirit incorporation.” extended this, But the case most and in which the -question analogous more before Court, case directly .came Providence the. decided, 514; Pittmann, & was Bank v. Pet. Billings and which In that of Rhode Island appeared bank, had chartered the in the usual form of acts of incorpora state, tion. The. charter contained no on stipulation the part that it would bank, tax nor impose not. reservation point. Afterwards; to do so. a law was silent on this TERM, 1837.

JANUARY' al.j v. Warren state; a tax on banks and the passed, imposing Bank, tax was resisted Providence impose tax, if the tax state could so impose might heavily ground, of no value, institution; to render franchise destroy contract, was a that the charter that a in effect it, charter is and is inconsistent with re destroy impliedly it. But the Court said that the nounced by granting taxing power essential the of to existence of vital importance, govern the of a ment; and that is never to be relinquishment power in of Court, the the assumed. And the late delivering opinion states in Chief Justice the the clear and principle, following emphatic- of he >the as the says, whole taxing language. Speaking power, “ undiminished, interested in that commu community retaining its to has a that abandonment insist nity ought pre in case in which the sumed, a of deliberate the state to purpose it does not now before Court, is, The case abandon appear.” the-same. It is charter in from a state. The precisely principle, in act is silent of relation to the contested incorporation power. in favour of the of the Charles River argument proprietors Bridge, same, words, almost in used is the Providence by is, that bank; state, claimed if it exists, power used as to the value be so franchise destroy granted must the same receive argument answer; corporation. that the and the fact already so power de exercised' cannot, of the franchise, Value affect the stroy any degree prin existence of the not, does and cannot power ciple. depend of its the circumstance beén exercised or not. having be said, that in the of the case may, perhaps, Bank, Providence Court were of the this im vital speaking power; taxing existence But the ob very portance every government. and end is to government ject promote happiness is established; which it it can community by ard prosperity assumed, never intended to diminish its government the end for which was created. And power accomplishing ours, free, like active, country ad enterprising, continually in numbers and wealth; new channels communication are vancing daily found both for and trade; travel and are essential to necessary, comfort, A convenience, state prosperity people, to be ought because, never surrender this like presumed power; power, the whole interest taxing community pre 54S SUPREME COURT. Bridge v..Warren'Bridge etal.] it undiminished. And when a

serving that a corporation alleges, state has surrendered for its seventy'years, power-of improvement accommodation, in a line; public great travel-, important which vast number of its citizens must along daily-pass; com have, insist, in' the. munity Court language above “that its abandonment not to be quoted, ought in a presumed, in which the deliberate of the state to abandon it purpose does not The continued appear.” existence would be of no government value, if it was great implications disarmed of presumptions, neóessary the ends of powers accomplish creation; and the it was functions transferred to perform, designed hands of pri d The rule of construction vilege corporations. announced Court, was not confined to the nor is it so power; limited in taxing delivered. On the it was opinion .contrary, distinctly placed d that the interests of were ground concerne community undiminished, the then in preserving, question; whenever the state said to be surrendered or any power diminished, whe ther it be the’taxing power interest, affecting and the rule of the same principle applies, construction must be'the No one Will' same. interests of question great body state, would, instance, be affected people the sur line of of travel to a render great with' corporation, the single toll, and exclude to exact competition While right seventy years. of are private the we for property sacredly must not rights guarded, also have that the community fights, happiness get citizen on their faithful of every depends preservation. well being of the rule construction above stated as the one, settled Adopting to it to of the charter 1785, to the apply we of proceed proprietors the Charles River This act of is in Bridge. usual incorporation and the such as are form, privileges commonly to given corpora- that kind. It confers on them the faculties of a ordinary tion^ for the corporation, purpose building establishes bridge; toll, rates which the certain are authorized to company take. is the There is This whole no grant. exclusive to privilege given over waters of Charles river, them or above below their bridge. to erect another themselves, No nor to right prevent other from No one. from erecting state, persons engagement ano- not be erécted; ther shall and no not to sanctioii com- undertaking nor to make petition, improvements diminish the amount its income. all Upon these silent; and no- subjects charter is TERM, Bridge v. Warren Bridge travel, so much insisted on in the a line is said in it about thing No words which are to exclusive privileges. argument, can used, intention to these any are from which an rights grant them, to must be If the is entitled implied, be inferred. plaintiff from and canfiot be inferred from the nature grant; simply, made. the words by de- relative been position already does, scribed. It not over the interrupt Charles.River passage nor it or make- the from it less convenient. None way Bridge, of the faculties franchises to that have been granted corporation, it's to take the by revoked tolls legislature; granted short, the charter remains In unaltered. the franchises and rights charter, enumerated there mentioned to have property it, remain its income is unimpaired. But destroyed granted which, free, the Warren off draws Bridge; being passengers it, which would over and renders their fran- property gone chise of no value: This For it. is gist complaint. not that the of Warren erection would pretended, have done them or in affected their any injury, degree property;, it had not diminished the amount of their tolls. order then en- relief, show, title themselves it'is necessary contracted do the act of which and that they complain; or in' words, contract violated that impaired, erection of the Warren Bridge. is, then the charter contain does such inquiry contract on state? Is there to be found in part that- stipulation

instrument? be hands, admitted on all that there is must none— no words that even relate to another toor diminution - tolls, or to the line of travel. If contract on that can subject charter, must be and cannot gathered by implication; be found in the words used. Can such an ? agreement implied The rule of construction before stated an answer to the question. In charters of- this are taken from description, public, those which the words of given corporation, beyond charter, their natural and construction, proper purport convey. There no words such contract as the import plaintiffs error for, contend and none can be the same implied; answer must be them was this Court to the Provi- given by given dence Bank. The whole are interested in this community inquiry, of that the their they have require power promoting 55.0 SUPREME COURT. Bridge Bridge River convenience, and of

comfort the public advancing prosperity, by convenient, safe, of providing cheap ways transportation and the travel, shall not construed to produce, purposes state; been surrendered diminished unless it shall appear words, was intended that it done. .to by plain the case before Court even still But stronger against any contract, as the such error contend for. implied plaintiffs was, Charles River in 1786. time limited for completed Bridge charter, the duration their corporation by expired original When, therefore, 1826. the law the erection of passed authorizing the Warren of Charles proprietors River held Bridge, under the of 1792, their existence law which corporate extended charter for and the years; and fran- thirty rights, privileges, must chises construction of the company, depend upon law, taken connection last 'mentioned wdth act of 1785. which extends the The act charter incor- bridge, to build another river; over Charles fur- company bridge porates Boston, communication with another and distant be- nishing only miles from the one and two old tween bridge. of this-

The first six sections act incorporate proprietors Boston define the and describe the Bridge, West privileges, du- of that ties seventh section there is corporation. the fol- recital: whereas the “And eredtion of Charles River lowing was work hazard-and and another public utility, bridge of West diminish the Boston bridge may place emoluments of therefore, Charles River Bridge; enter- encouragement to extend the charter prise,” they Charles proceed River it for the and to continue term from-"the seventy years Bridge, day to the conditions subject completed; prescribed act, and to be entitled to the same tolls. original then, appears, charter, same act extended this esta- legislature blished another would lessen knew profits; this, too, charter, before the the first expiration only seven after it was that the did years thereby state granted; showing, sup- that, it had used in law, the terms the' first it had pose deprived itself of the making public improvements might the Charles and from the impair profit's Bridge; language used in the clauses of the law is extended, charter seem, would carefuk to were exclude especially any inference that the extension was of com- made ground TERM, 1837. v. -Warren al.] Bridge Bridge et River [Charles for with the or as a promise compensation rights Company, Bridge impaired.

On the words to exclude that contrary, employed cautiously conclusion; the-extension to as a reward declared granted “ run, had for the of enter- they the hazard encouragement The extension was had under- prise.’^ given company because taken and executed a success; work doubtful and the improve- ments which the then diminish the legislature contemplated, might emoluments had It from it. results receive expected statement, law the very legislature extending charter, asserts its to authorize over Charles rights improvements river which would take off from this the travel portion and diminish its profits; renewal Company Bridge accept thus and thus connected of. given, assertion carefully on the state. Can part when their they, corpo- holding rate existence law, under this their franchises altogether deriving from it; add to tire their charter an expressed privileges implied which is in direct agreement, conflict with of the law from portion their derive existence? Can the corporate presumed have taken an con- implied themselves upon obligation, its own trary acts and declarations contained the' same law? It would be difficult to find case such an implication, justifying even between individuals; still less will found where it be sovereign are concerned, of a and where the interests whole community would be would, indeed, affected such an deeply implication. be a exertion of its own views of strong power, upon' acting judicial done; what justice raise, and the have required, ought parties a sort of contract, and coercion, an infer it from judicial implied nature instrument which the very legislature appear have taken to use in- words which .disavow pains repudiate state, tention, on the a contract. part make Indeed, the Union, state in the of almost practice every and usage old to have commenced the work of internal enough improvement, doctrine contended on opposed part plaintiffs succession, in error. on the same roads been made in Turnpike have travel; line of with the the later ones materially profits interfering instances, utterly These been have, first. in some corporations transporta ruined modes of and better the introduction newer tion, rendered cases, rail roads have some travelling. useless, roads entirely on so line turnpike same travel SUPREME COURT. v. Warren is not worth franchise Yet turnpike corporation preserving. in none of these cases have corporations supposed invaded, or were contract violated privileges part state. Amid multitude of occurred, cases for the last this is first daily forty fifty occurring years, instance which such contract for, has been contended implied Court called to infer and this it from an act incor ordinary more the usual and poration, containing nothing stipulations than. to be in found such law. The of absence provisions every any when there must been so to have occasions controversy, many give it, states, to that neither individuals, rise nor nor proves corporations, ever such a contract could be from such char imagined implied shows, that the men who for these laws, ters. voted never ima contract; such a and if were we maintain they forming gined it, made we must in fiction, have create by legal oppo the truth of the and fact, sition to the obvious intention of the party. deal thus with the to the states; We cannot reserved and rights by and intendments mere technical take from away legal reasoning, of that over their own internal and them portion police which is so to their well and necessary improvement, pros being perity.

And what would doctrine of be the fruits of this contracts implied of of states, on the and of in a line travel part property if it should now be sanctioned this Court?' To what corporation;, If to this results would it lead us? it is to be found the charter it, the same of must discover various process reasoning last which been within the forty years, turnpike acts have passed, of ex- And what is to be the extent of the companies." privileges sides of the road? The counsel who have the different clusion to so this not cer- have ably attempted argued .define tain boundaries. How far- must the new distant improvement from the old one? How near without may you approach .invading If this Court should establish the line? privileged become of for, now is to the numerous contended what principles roads of rail established on the same line travel com- turnpike and which rendered the franchises cor- have panies; turnpike of no Net it once be understood that such value? charters porations contracts, with them these and this unknown and carry implied give ¿fine undefined will soon find property you travelling; old turnpike from their calling corporations awakening sleep, TERM, 1837. ,v. which have taken down improvements Court to put upon which been millions invested property their place. lines of travel which had been canals, before oc- roads rail will be We shall corporations, put jeopardy. .by turnpike cupied of the last to the back century, be thrown improvements obliged old the claims shall still, until turnpike corporations to stand shall consent these states to satisfied; and avtil permit of modern science, partake lights themselves are now those wealth benefit improvements adding comfort, Of the convenience other every port prosperity, Nor is this all. This Court wrillfind itself of the civilized world. rule, the some width fix, new kind arbitrary compelled for if such a travel; in a line of exists, property property inus out extent, we unless, guide marking no lights its. resort the old feudal and to we indeed, grants, exclusive rights towns; and ferries, between are by prescription, de- prepared road one town when a to another, cide that had turnpike canal, rail road or between these two made, no could points, after- This established. Court wards be sanction prepared prin- lead to such results. must ciples deepest have been questions, importance, raised Many It discussed is not and elaborately argument. necessary, our case, to of this express them; the decision opinion and upon to avoid an Court deem it on proper opinion volunteering any ques where, the construction of tion, constitution, involving case directly them, itself does before bring and question make it it. to decide their duty upon a also, of technical

Some purely character, questions, have been as to the form of made and and the argued, proceeding re- right-to on the record lief. But appears out the enough bring great ques- contest; it tion in is the interest all parties concerned, that the real should be settled without further controversy delay: as the of the Court is on the main opinion pronounced in question dispute here, the whole it is disposes altogether unnecessary enter the examination of the forms of proceeding, which it before the párties Court. brought The court of supreme judgment judicial commonwealth of Massachusetts, bill, dismissing plaintiffs’ must, therefore,, be affirmed, with costs.

Von. XI. —4 A SUPREME COURT. Bridge Bridge River

Mr. Justice M'Lean. This suit in was commenced in court of chancery supreme Massachusetts, decree,- forma, where the bill'was dismissed aby pro the members that court divided in and a opinion; being equally Court, of error was writ taken to this on the .that ground, asserted and which has been under the violated complainants, a of the charter provision respondents, protected special federal constitution. an .of is founded on act complainants’ right

Massachusetts, 9th, 17S5; March which certain passed incorporáted individuals, and river, authorized them to Charles erect over bridge Charlestown, between stream Boston amend- navigable act, 1791, the charter atorjr passed thirty years. extending of this if not the on it in As part explanatory right, ground river, jests, is made to an ancient a reference over same ferry, held Harvard of which was college; law, if not in transferred, contended, equity, Company. new of, consists in the construction of a complained wrong river; the same under a recent act of- the over legislature, one, few rods of the old and which takes the entire away

within old bridge. profits to be to' establish the

The act required Charles time, dimensions, of certain within limited be-kept constructed accommodations, to the and to afford certain specified in repair, were authorized to certain rates of company charge public. were two hundred .toll; and they pay, annually, required pounds The first charter was for forty years. Harvard college. granted in the case show that facts The' proved descrip- within the time the act was constructed required tion the annual made to the limited; that been pevment, college; has faithfully that, every performed respect, corporation it. duties conditions thé enjoined is contended charter respondents, granted of that which had previously granted violates obligation with that, it is in conflict complainants; the consequently, “ shall that no declares, constitution which state pass provision the law of Contracts.” impairing obligation na- In which seems the first investigation inquiry ÍERM, 1837. Bridge River v. Warren to arise as to the nature and extent of the asserted turally right by the complainants. 1631',

As as the was year across Charles early ferry established river the colonial of Massachusetts by government Bay. “ court that .the to the say, ferry general granted college.” From this time were received profits ferry college, the. and it was under statutes, various required by certain penalties, boats, &c., certain for the accommodation of the This keep public. was it duty continued to performed college; occupy until the Charles ferry constructed. was court, From the above act of the others general shown, been and the uhmolestéd use of the for more than one ferry seem, hundred its forty years, by w;ould college, use had all received the sanctions to con right necessary stitute a title. If the valid was not foundéd strictly pre it rested on a basis’ cription, equally unquestionable. established, At the time this was it was the ferry only public- communication between Boston and Charlestown. These places, latter, small; were then especially accommodation greater . was than was afforded Its was franchise required ferry limited, contended, it is but extended whole ferry ways; line of between the two travel tSwns.

lit cannot be material to whether this was very. inquire ferry or whether the originally public private property; landing places were or their use vested -the only, profits college, The beneficial interest in the was held ferry. ferry college, and-it received tolls.

-The a matter of ferry, concern, being regulation boats to government. prescribed number belonged to be on a ánd attendance failure kept, necessary given; with these sub- comply college would requisitions, franchise, to the forfeiture of the and the other pro- jected penalties statute. vided by immunities, transferred to the

Was this ferry, Charles River Bridge Company? of this there

It is express assignment not.contended but claim otherwise; deed or the complainants right by Before found in the’facts case. evidence of transfer is consulted on was was. subject; the charter the college granted, ceased; constructed, use of the so soon'as the ferry COURT. SUPREME 556 y. Bridge et Bridge Warren al.] River [Charles from the the the received complainants college regularly contended, This hundred acquiescence, two annuity pounds. the other facts in to establish the in eoilnection'with goes taken to the for the annual ferry compen- the the right relinquishment the charter. to be under sation paid required the of the for the ferry, there a substitution bridge That was have, no evident; but there seems to been of the consent college, charter the ferry. original bridge rights assignment the at of which period, forty years; expiration was granted commonwealth, to the was to revert “saving of the bridge property ’ the annual and annual a reasonable compensation to' the college not said received, had which they ferry, might the: income been erected.” bridge no otherwise, been fire or there was destroyed by

Had. the bridge would ferry complainants,' investiture of it. realize up ferry, profits enabled keep them it is destruction college, presumed, On the might attached to the all the responsibilities ferry. rights have resumed clear, that these least, would responsibilities At it.is very rights on the to afford They not have devolved complainants. stipulated If to the thén these accommodation could public. a different rights been claimed and exercised under complainants, not have can circumstance's; how considered bq enlarging, under the franchise charter materially way affecting any. ,. 1785? law, of a at common and in the franchise the state of

That ferry Massachusetts, extends clear from beyond landing places, very . 53; Petersdorf, 513; 512, note; 10 13 Vin. Willes’ Rep. authority 703; 330; Book, 6, 22; 6 Barn. & Cres. Year Hen. East, Rolles’ 12 C. 140; n; Market, 2; 428. Com. B. Action Fitz. Piscary, Ab. Digest, 172; A; Case, 219; M'Cord, 387; 3 Blk. Nott & 2 6 Saund. on the 344; 3 229; 220; Patent, 2 Vent. Com. F. 4, 5, 6, Levinz. Mod. Dig. ; 4;n. 2 406 12 10 3; Saund. Inst. 7; 2; 2 chap. Chit. Pre. chap. Willes, 4 198; 512; Term, 666; 114; Saund. Croke, Salk. E. 710. was a for the annuity given college compensation pro- and Shows a ferry; fits willingness college suspend the time in the act. And ferry, specified during jit into construed an abandonment still indeed might ferry, an abandonment terms for a it. was publie, specified, accommodation. better TERM, v. Warren answer only designed purposes - but to convenience. The enlarge con- ferry, profits were not those which had

templated by corporators, only realized from the but such as arise from would ferry, increased facilities to public.

If there was franchise to ferry assignment complain- ants, its extent cannot be a matter in this importance investigation: is nor into the effect necessary under inquire assignment, the circumstances of the iffiad been made.

There is no in the act of the provision com- incorporation vésting the the A reference is made to pany ferry. privileges with the the site of merely view fixing bridge. must be ascertained

obligations complainants construc- by tion of the act of 1785. This be considered of a contract, must law light act. tifie it; In contracts one it is law, sense a applies having passed all the forms of received sanc-

through legislation, necessary tions; contract', but it is á as to essentially the obligations, imposed it, it confers. bjr privileges

Much had bar, discussion at the as to rule of con- a charter or many authorities been referred struing grant, to on cases, a is construed point. ordinary favourable grant ánd But it is. against contended, that in grantee, grantor. is governmental grants, by nothing implication. taken rule, down, The broad thus laid cannot be sustained by authority. name, If an office all the immunities of that granted by office are fie taken, implication. essential to the Whatever enjoyment must be taken And this rule granted, thing by implication. holds whether the emanate from the good, grant royal prerogative or under an act of in this king England, legislation country. í£ is, rule at the suit of general, king, is tó be construed' most grantee, beneficiálly most king, but as a strictly obtained matter of grantee;” against grants spe consideration, cial favour or on more king, con liberally strued: Grants of limited are construed political powers strictly. Com. Grant, tit. 2 5; 683; E. Ab. 1 M'Cord, Dane’s Nott & Dig. Stark M'Gowan; 79; v. Moore, 474; Coke, 92; 8 6 Barn. Pop. & Cres, 703; 5 Ib. 3 M. S. 875; 247; 23; 18 to Hargrave, & Angel on Tide Water, 106, 7; 4 4 2161; Burr. & 439; Durn. East. 2 Bos. SUPREME COURT. 558 al/j Warren Bridge v. 1 Term, 1 Con. & Pul. 17 Johns. Rep. 669; 195; 8 M. 472; 382; & 6 Mass. Mass. 17 Mass. S. 1 247; 437; 231; 4 Angel, 289; 108; Bac. Pre. T. Plow. 336, 7; Coke, 30; 1 Vent. Mass. 140, 2; 522; 9 30; Saville, 132; Coke, Croke. J. Com. Dyer, 179; 10 409; 112; Bac. tit. Giant, Prerog. Barn. & Cres. 1 12; 2; Dig. 875; Mass. 356. with a interest view

Where legislature, advancing work road, turnpike of. construction charter, why reason is public futility, perceived grants ..of con- rule a charter construed same governs should 'individuals. tracts between (cid:127) enter the contract with into public, through agent, in the construc- consideration a valuable received company; and This consideration paid tion of improvement.. contemplated should and sound policy requires, company, aré same rules private by-the applied ascertained protected, as. contracts. Stour reliance was the case

In the placed great argument, others; Barn. & Ald. Canal Wheeley case had a was, in this whether the Tne plaintiffs question said, “the canal cases; and lord toll in certain Tenterden charge the been made under the an act parliament, provisions having of. This, like are from that act. of the derived entirely plaintiff adventurers, is a betweén other company tases, bargain many statute; in the terms of which expressed public, to cases, established all such is now rule construction fully must in the terms of the contract ope- this —that any ambiguity be- adventurers, favour public; rate against them is not to by can claim which clearly given nothing, plaintiffs act.” taken, to under show, on that This relied nothing grant, or be inference. His must says, lordship right implication by does not which would say expressly pre- clearly giyen given, —he In another the same lord- inference. his part opinion, clude-all “ it is Now certain that the have no quite company says, right; ship to receive any compensation, excépt tonnage given, expressly canal, some the locks or the carried through goods paid it is show cuts; and -incumbent them to therefore collateral ivoixisome they inference, clearly given by right, TERM, 1837. v. [Challes shown inference; be May right clauses.” this implication? case, is this;’ laid down in this doctrine simply

. right must be it must toll, expressly, given clearly charge (cid:127) not this case out inference. Does establish the made doctriné to the construction of Is not the grants? implication, applied incident to a A cannot be by-laws corporation? pass under terms. claimed must by corporation, ambiguous clearly inference, terms, have been either granted, express appear lord Tenterden. as stated by a tax on

A land corporate power impose company, in the case of Lessee of Beatty KnoWlfes, as considered nature, in its 168, must, construed; and in all Peters, so strictly in the nature of cases where are exer powers, corporate legislation, the directors were cised. authorized to a tax impose circumstances; certain and the under .Court held that had under,other tax power impose eircúmstances. stream, Charles river obstructions to being any navigable of a erection other work, would by,the bridge, navigation, authorized law. Unless punishable, the act of were authorized to complainants build By officers, elect their &c. and certain rates of .toll. The bridge, charge to tax was the consideration on power 'passengers, expense &c. .and it, building lighting keeping repair, tolls, then of was the incurred. essential of the fran- part chise. course of which Would

That show reasoning consideration short of this to tax, consist and the profit thing arising therefrom, is too refined The builders of practical purposes. had no á desire increase doubt aceommodatiqp: their, funds; but looked to a investment of chiefly profitable which secured this charter formed the con- part object, sideration on work was performed.

itBut is said, there nowas exclusive and that conse- right given; built, cause well another to be quently legislature might bridge whenever, in their opinion, convenience it. public required

On the other hand, it is insisted franchise was as extensive as that of the fran- ferry; this grant chise been made no legislature, it had having by power grant bridge. a of it to the new part SUPREME COURT. River Warren Bridge case presents considerations of part great impor-

That cannot be and of-much denied. tance, difficulty, To into the inquire act is at all of a solemn times a legislation task of much validity so, it whén but is such is peculiarly made a delicacy; inquiry by relates to the tribunal, act a state federal .and There legislature. however, in the of which such an cases, investigation inquiry then no court can shrink, nor desire' to shrink becomes a duty; circumstances, Under its such will duty performance with the due a branch respect be high always performed which, other, more than is discre- clotned with any government, influenced will. by popular tionary powers, is, to the Charles in its Company, The granted extent, exclusive; extent, but to measure this naturej to certain If the boundaries could be this right the chief difficulty. .presents one, be it would contended established, scarcely clearly could, without to another com- compensation, grant the legislature of it. or any part the whole pany of land, tract

. it undertake an grant although As well might made the same land. had been previously operative grant void, on the would the second ground a case grant the entire interest As premises. had' parted it the title first had grantee; passed public to. agent no second so, it could convey grant. done right’by having same under conside- is the question regard principle extended be- the franchise complainants If granted ration. as much above the new legis- bridge; yond would be to second as'it part make grant, lature had been for which previously of land patent regularly tract issued.. franchise, contemplation, body incorporeal legal though not less extension; granted, having scrupulously law interest soil. than the.principles.-of guarded law, and can more be resumed legis- a substantive once than lature, when right.- granted, unsafe, for the judicial would it. suggested, But autho- discretion? and limit- this exercise legislative to interpóse rity said, hastily of the Warren it is was- not charter Bridge, were, after year, that all the circumstances of year granted; and at last the act of incorporation examined legislature; duly the'legislature, because, the judgment was passed, TERM, Bridge River v. Warren et [Charles it; and accommodation it is that the insisted to required the grant was to the exercise of necessarily subject complainants discre- tion..

It' is the the undoubtedly province for. legislature provide the the utmost due to their public exigencies, respect always acts; and the those acts can validity only questioned judicially, where At- they the the infringe upon private time rights. Charles built, was the River of Boston and population Charlestown was small in numbers; with their and it is' present comparison pro- bable that the exceeded calculation made greatly increase at the time. The was sufficient to accommodate the bridge public; was, sufficient, believed it would be perhaps, the time during limited the charter. If, however, the increased population and intercourse between these towns and the re- surrounding country, accommodation, than was afforded the quired greater bridge, can be no doubt the there could make legislature provision it. fot

On the counsel it is part complainants’ contended, if in- facilities of intercourse between these creased' places were required was bound in faith public, legislature good give to the Charles River either to option Bridge Company, their enlarge one, or construct a new And might required. this- rests ground argument complainants’ franchise whole line of travel between included the two places. of their Under this view rights, company proposed legis- the new charter lature, before to the granted respondents, to do which should be deemed for the any thing requisite public accom- modation. support complainants’ right, case respect, is re 40; 7 Barn. Cres.

ferred where it laid down, that of an ancient market law, lord may, by have prevent other in their houses, selling goods situated persons private within limits of his franchise: and also to Barn. and Cressw. 363. show, cases These to the lord of the market is ex clusive; if yet, the market is place designated made too small owner, act sell in -may any person vicinity market, without" lord incurring any responsibility market. passed had

Suppose law legislature requiring complain Vol. XI. —4B. SUPREME COURT.

.562 Bridge v.' Warren Bridge alj ánts or constract a enlarge new bridge; one, would they been bound ?itby not Might replied legislature, have constructed our of we dimensions required charter; have, we therefore, for the provided the accom modation which we are bound to And if the could give. this of the is it not require clear that complainants, cannot assert an exclusive claim to the of an advantages enlarged accommo dation. In common citizens, with propositions .submitted to the- but could legislature, -they exclusive afford urge . any accommodation what was their beyond by given bridge. When the built, River Charles was considered a Bridge of work It was, great magnitude. the first perhaps, experiment made to throw a of such an arm of sea; over the bridge length and in the risk and were incurred. great construction- expense i.t unrestricted were profits induce contemplated, or necessary The the within two or three justify undertaking. Suppose after years the erected, River had been Charles the had au- legislature thorized another to be built of it, which could bridge alongside only line of accommodate same travel. Whether the of such profits were realised state, by would not by bridge company of thé act have been deemed so a violation gross as to be condemned rights complainants, sense by the.common of mankind? and common justice timbers or stone of did not plea, new in- bridge one, with old not, could in

terfere such a have availed. is not estimated value of timber quantity but contain, stone it And if one-half may over travel travel, of this all of or two-thirds conveniently might the old be drawn to the one', new passed-over. bridge, injury than would milch have been the of the old destruction greater bridge. A reconstruction of the would secure to the bridge, destroyed, but company ordinary profits; division destruction of the the new runs to the end of the profits, charter of the old bridge, And one. shall it be said, that the diversion greater injury, profits, may inflicted with while company impunity; for the less the destruction of the injury, the law would give adequate remedy?

I am not here about to apply principles long established in for the England, ferries, markets, protection ancient TERM, Bridge v. in its full doctrine, extent,

fans, mills, &c. my opinion, And it is one of the of our country. to the condition not adapted it forms rule of law, that traits common right, most valuable to its principles. and under adapted in cases circumstances only few founded on there are prescription. In this country and its recent; of our settlement country comparatively rapid advance have prevented, improvements population growth interests from immemorial acquired by being degree, great is found countries where Such evidence society usage. are in a more sta- fixed, become great degree improvements law, aid But without the common tionary. principles the charter be at a loss how constru we should complain- their ants, and ascertain rights. their franchise cannot fix the complainants

Although showing under the the com- ferry the extent rights; yet, principles Massachusetts, been too settled in law, mon which have long my franchise shaken; be now claim their may beyond opinion, If these, it is .they beyond the timbers bridge. go no exact limit can be because it contended that -^And prescribed. difficult, and designate perhaps impracticable, pre- my limit; it follow that cision the exact does franchise complainants’ as their narrow as bridge. with the define, Is more difficult to it reasonable extent certainty, cases, it to determine is, than other the cha- of this many right, laws, of an the from established facts. racter offence What against What measure a nuisance? of indi- private constitute public shall be a shall sufficient to convict the latter?. And person vidual wrong the shall what amount inconvenience constitute the public former? the franchise, it more difficult to define

Would complainants’ And ana to answer these yet nui- questions? private than public are in courts How sances daily justice. cognizance ferry same rights, upon protected the cen- depending principles, turies in England? the common law are with that applied principles ma- of the law

thematical are sus- civil precision, principles But if franchise cannot be ceptible. measured complainants’ by feet no it not follow that inches, does rights. facts which or wrongs, pub- determining establish SUPREME COURT. Bridge v. Warren [Charlea well as an lie as exercise of private, judgment indispensable; facts and circumstances of each case are considered, and sound conclusion drawn them. legal of the was substituted tor the bridge complainants ferry; to accommodate the it was course of travel designed between Boston This and Charlestown. view of the in granting and of charter,, it. And complainants if it be accepting admitted that increase of population erec- great required suit, tion of other than which is inof bridges complained sea, this arm of the that can afford over defend- protection ants. If the interests of the complainants have been in- remotely construction of license, other does by jured bridges, give to the defendants to inflict on. them more direct and greater an extension of the By charter, injury? complainants’ thirty years, them "for indemnity accepted .was given construction Boston West bridge. extend franchise must a reasonable complainants dis- tance below timbers of above This distance bridge. the. so must not be great.as subject inconvenience, serious nor so as to limited authorize ruinous It not be competition. may to say, that for a remote necessary law would afford a injury but where the is ruinous, no doubt remedy; can exist on injury The new while tolls were lessened subject. charged, of the .old .one-half, two-thirds; one about profits and now that it is free law, tolls received complainants nominal. On what of law can such an merely principle act.be Are sustained? under a solemn contract with the rights acquired held' a more uncertain tenure than Is legislature, rights? so cases, omnipotent to resume what legislative without it has compensation? contended, will granted scarcely do that if this, not do it legislature may indirectly, di- may If it do it rectly. through instrumentality Company, may dispense that'instrumentality. But it is said that check exercise discretion by will the advance of legislature, operate against improvements.. Will not a different If effect be produced? fevery turnpike bridge them, were liable to have their wrested from company property under of the an act much could legislature,,without compensation; value be to attached Would men property? expend prudent funds in their such improvements? making TERM, 1837. check that be considered as an legislation, it pri- Can injurious without shall not com- be taken public purposes, property vate the federal constitution, This is imposed restriction pensation? states. constitutions of the respective and by of the property, complainants But it has urged cannot be denominated as the- tolls in taken, anticipation not been consists The entire value of bridge property. its Is not this cannot value toll. property,

exacting intercourse, not and increased afford a Do measured? past receipts be estimated? And if the whole rule which future may receipts under an these are taken act of the is not tolls the pro- legislature, taken? perty complainants has been

The charter bank compared complainants .a charter, which no on the to esta- implies obligation legislature bank in done; blish another the same This is often and--itis place. that fbr the done the old bank contended, consequential injury its no one that an action would lie,' nor supposes lessening profits, ' the second charter is unconstitutional. This bears case little or to the one under bank consideration. wind analogy may up A business, its or refuse discounts, at the of its stockholders pleasure and directors. are under no on the They obligation carry opera- institution,’or tions afford amount' of accommodation Not so with Under public. the'complainants. heavy penalties are obliged keep repair, lighted, two hundred kept open, pay pounds gates annually do, are This bound complainants college. although tolls should for the oil consumed in the received scarcely pay lamps the bridge. of the state has taken the tolls of the com sovereign power but it has left them in of their Its

plainants, possession bridge. and timbers it, stones and the roads that lead to untouched, re main unobstructed. - defence; One declared, counsel in the emphasis,, charter, can no than it can more lead citizen legislature repeal to the block. block; cannot a citizen to the legislature" bring head; his off it bleed arteries? It cannot cut his open may him to death? had the construc- authorized Suppose tion of wall, ends encircled the impassable so as to it. wall may prevent crossing passengers SUPREME COURT. 566 Bridge River Warren et . [Charles al.] distant the abutments as from as the Warren Bridge. Would this-be of the franchise? infringement On the plaintiffs’ for, contended how be could it so principles, considered? If the (cid:127) franchise is to limited their then plaintiffs’ are in- bridge, not they the, or, construction of this at wall; by least, jured without wall be This would no more remedy. to injurious the plaintiffs the free And the than told, be plaintiffs as might alleged bridge. this the wall does not touch You are your left in bridge. full exercise faculties. You your corporate have the same to toll as ever had. you charge right had the same to legislature destroy plaintiffs’ bridge the construction of the wall, as had autho- authorizing free construction this rizing bridge. deciding of. question consider be are not to what the law on may we this in Penn- subject or Ohio; but what it Virginia sylvania, Maryland, is Massachu- ip state, the doctrine has And been setts. sanctioned that of men accomplish enterprises importance to the associations and who have vested funds on the faith, are enti- public, That their do not become the tled protection. rights sport than excitement, no more of other citizens.' The rights popular forms, it is believed, under consideration a solitary case exception we rule; whether look the action this .or the legislature, state, of the bench, on the at jurists distinguished opinions bar. expense up to. annuity keeping paying-the is that is left state Had college, .complainants. been, - lead such result proposed, any thing might after the construction of the soon it is not complainants’ bridge, pro- bable, sanctioned; that it would it as well might have. ygt ¡hen been done A as now. free couldJbave.been bridge then^ no more it is than now. No is reflection injurious plaintiffs intended commonwealth re- Massachusetts, on so nowned for its virtue and She our'history intelligence, patriotism. not will withhold shall justice, complainants when established. be

Much reliance on the placed in the case argument, reported Peters, 560, in which it was decided, law state of Island, Rhode banks, tax g imposir constitutional. As these banks state, were chartered it contended that was there no implied That obligation not to tax them. TERM, 1837. Bridge v. so far exercised, carried could be destroy might this power But Court sustained the the state to tax. the banks. the two cases is Does it fpl- between perceived. The analogy taxation, is not low, because exempt complainants’ bridge yalue or its destroyed, impaired by any greatly mejns? The to tax extends to every description property state, held within the which is and there is specially exempted; no reason or from the of this justice withholding operation power, held under the of the state. directly property charter has a been called but in no complainants’ monopoly; considered, sense can it be so A is that which has monopoly just consideration; without as trade; a or of granted monopoly the manufacture of article, to the exclusion of all com- any particular It is that which is a common from the petition. withdrawing right, it in one or more community, individuals to the exclu- vesting sion of all others. Such odious, as monopolies they ope- are justly rate not to trade, but only injuriously against general prosperity But the society. accommodation to the public by afforded- Charles River and the consti- Bridge, annuity paid college, (cid:127) tute a valuable consideration for the the charter. by privilege granted The odious features of a do not, therefore, attach to the monopoly charter of-the plaintiffs. The 10th article of the declaration of in the constitution “

Massachusetts, Whenever the provides; public exigencies require that the property individual should be appropriated public uses, he shall a receive reasonable therefor.” And in compensation 12th that, article it is declared, no shall be subject deprived “ his immunities, estate, but property-, privileges by judgment of his or the law of the peers land.” Here is a power recognised and is it, incident to sovereignty, apply private property uses for it by a This making just compensation: over- reaches other, and- every must be exercised 'at discretion of the government; a a road, a tract of land, or bridge, turnpike property, taken whole, or in part, public pur- on the poses, condition of making compensation.

In the case of Chadwick v. The Proprietors Haverhill Bridge, reported Dane’s that a bridge appears Abridgment, was built under charter rods of the within forty plaintiff’s ferry, and over the same water. anBy act of the commission- legislature, ers were authorized to ascertain sustained by plain- damages SUPREME COURT. v. Warren Bridge et tiff; he his action at preferred law, but which was prosecuted, and were recovered. true, It is damages matter was adequate refer- but to-arbitrators; were men red attain- distinguished legal ments and after great experience; they, determining, action, could sustain his assessed the plaintiff This award damages. was sanctioned court. Under the circumstances of this at least as as great weight authority it, if the decision belongs court, had been made on points involved. case pre- sented .complainants much than Chadwick’s; and stronger if he entitled to was for the- done, no reparation can injury doubt exist of the complainants’ right.

In the extension of national road the state of Ohio, through free was thrown across a stream the side of bridge a toll had ten some or fifteen of its charter years to run. new did not in the least one; obstruct the over the old bridge passage wa; contended, and was that- no exclusive under the given the owner of first the toll was entitled grant, bridge compensa- tion. It was said occasion, as it has been this, urged on.that the discretion as to given' subject legislature, and that the new could not subsequent grant; objected first to the was built by whether.it under'the grantee, authority state, the or federal government.

This course of influenced a decision the claim- reasoning against ant the first but a a instance; case, reconsideration of his and more it, induced the to reverse thorough investigation authority proper decision, an and award the done. The indemnity injury of the estimated, value charter was and a just compensation This, made. it is true, .decision, was not a but it was a de- judicial cision of functionaries of the is entitled to high government, It was dictated that sense of which should respect justice felt bench, on the tribunal to every act having power upon private rights. counsel,

It is contended by the that there was not respondents’ only exclusive right granted complainants’ charter, beyond the timbers of but broad assumed, bridge; ground had no to make such legislature power a cannot grant;, domain, eminent shall any part bind a grant subsequent And a legislature. number authorities were to cited sustain their 1 Vattell, position; 1, 4 101; 327; sec. R. 9, ch. Litt. Domat. Book tit. 6, sec. 1; Vin. Puff. 88; 81; 350; 17 10 Price, Chitt. Prer. TERM, 1837. Bridge River 593; 25;R. 7; Cowen, 558; ch. 6 Wheat. 20 Johns. sec. Har Gill, 36; 4 Tracts, Law Johns. grave’s sustainable, If this doctrine be to this it is not applied per- ceived should be made in favour why exception plaintiffs, within the timbers of admitted, It is that their bridge. grant extent; to this and if the a good may legislature part grant to this extent, eminent domain it? If why may go beyond domain, the.eminent may any part must not the extent of grant fixed at its discretion? In what other mode can it be grant a determined, than construction judicial grant? when on a incorporation,

Acts of valuable consideration, granted of contracts; the nature assume vested them under no. than more other power any vested legislative subject rights. charter to the Charles granting Bridge Company, not divest itself of did similar charters. grant But the passed grantee; and can no more be re- granted thing than it can resume sumed to a legislature, tract of When land land which granted. the state can granted, nc acts over unless it exercise be taken for ownership public it* same rule and the for a use; applies grant turnpike road, public wouM improvement. assume bold po- that a sition say, resume the subsequent legislature may owner- land, which had been of a tract at a granted ses- ship preceding sion; and is the same in yet principle to vested regard rights, By franchise, under an act incorporation. state granting itself of of its does not divest but to any portion ad- sovereignty; interests, one or more individuals vance are vested with a to exercise necessary attain the desired ob- powers capacity consideration, under In the case necessary con- powers ject. the Charles River up struct and were keep Thomas given his associates. This did not Russell and withdraw the from State more the action than it is sovereignty, withdrawn it has In both land which cases the extent granted. become question decision; judicial investigation the but the law. granted protected by rights that, as the It is insisted the extension of complainants accepted their charter in an assertion of the le- express by under make-new now discretion, to at ob- its cannot gislature grants In the of the extended ject respondents’ charter. acceptance charter, of that complainants are bound provisions only XI, Vox.. C—4 SUPREME COURT. y. et'al.] have declarations; which Any rnay thelegislature

charter. general charters, more could made, have;no as to grant power regards on of than similar rights on the bearing complainants There was no reservation this the state. power throughout sub- charter, nor was there enactment any géneral prolonged Of must course, upon the construction charter ject. depend and established general principles. York, un- court New been decided supreme for public

less the act the appropriation private property making it Where is void. use, property indemnity, contain provision an officer of the under emergencies, by taken government, great I considered, be should though he could hardly suppose; trespasser; at the it for the time is taken. does not property he pay doubt, that a be can be no should compensation There provided authorizes act which the pro- in the same appropriation for If, however, omitted, act. this be in a cotemporaneous “perty, taken, the law unquestionably remedy gives and the property No which- rests sustained. government damages adequate assumed, laws, basis of fixed whatever form may reside, or exer- has asserted may right, sovereignty wherever private public purposes, cised the appropriating property compensation. without making the act to establish the Warren there 4th section of

In the Bridge, shall make for compensation corporation ais provision ,the be taken for the use of pro- bridge. estate real was the new under appropriated complainants, perty estate; and real be denominated charter, consequently cannot strictly not reach case. respect does provision special had been made. must stand provision though law the char- under the complainants! property appropriated But If new for public purposes? the respondents, ter granted -necessary, promote deemed legislature, were autho- convenience, the defendants were consequently general were it, franchise grant- plaintiffs’ construct part rizéd defendants; it was an property private appropriation ed much an property It was as private appropriation aublic.use. of an use, as would appropriation ground road, la for a rail authorized Individual, or a turnpike, so soon as-the company the Warren charter Bridge, By in the construction reimbursed money expended anould cent. per incurred five expenses up, keeping tile bridge, TERM, Bridge Bridge v. Warren et '[Charles River al.] the interest, annum, amount, on the whole was to become per of these state; whether sums should be received property it in six not, was to become from the time public property years cost of construction, it The was completed. expenses, cent, interest, been reimbursed, with the five have per together sum has been received the state the tolls addition, in large it now, last, of But it is dnd has since March is this bridge. admitted, a free bridge. of the Warren

In the charter seem Bridge, legislature granting the,, to that were about to fact they pro- appropriate recognise uses, for as that the public they provide, complainants perty behalf the old new shall annually college, company pay it hundred this one, a By provision, appears pounds. do has undertaken to what the country only jury do;..assess the amount of could constitutionally compensation are entitled. complainants then, law not Here; is a takes away only property extent, but for their some indemnity. complainants, provides, of this Whether the have availed themselves complainants provision láw, is not, does not nor it material. The appear, very this them; does bind entitled to adequate are respect, they considerations, These taken. belong compensation property it. under the and const'tution as arises laws Massachu- setts. remains, this Court can whether take yet inquiry important is case form which the presented. juris- .

jurisdiction first on two place, Court is resisted diction grounds. has become the Warren property it’is contended Bridge no control over state, that the defendants longer also, court supreme subject; Massachusetts trusts. over jurisdiction court of Massachusetts, chancery supreme jurisdiction authorized in limited; but cases they specially admitted where nuisances, issue ground jurisdic- injunctions.; it. If the follow law incor- sustained, all the' incidents must tion unconstitutional, on the Warren porating Bridge Company use the com- appropriated property ground doubt, there be can without compensation; plainants, making had court of Massachusetts jurisdiction that the supreme that the whole matter not clear case? And having jurisdiction, decree, shfjll that the defendants settled controversy may SUPREME COURT. '[Charles account complainants received moneys them after had notice of the injunction? insisted, It is also that the state is the substantial suit, to this party the Court has no jurisdiction against state, that sovereign can sustain no those who jurisdiction act as against under agents of a state. That if such a authority were jurisdiction asserted by Court, this would do what the indirectly, law them prohibits from directly. doing In the of case Osborn et al. v. Bank States, United 9 Wheat. “

this Court The circuit courts of the says, haye United States juris diction a bill in filed the Bank of equity, the United States for the the bank in purpose franchises, exercise of its protecting which are threatened with invasion and destruction undfer an un constitutional law; state and as the state itself cannot made a de fendant, it be maintained may officers and against agents state who are to execute such law.” appointed

As it this case, regards question jurisdiction, principle, to the one similar under consideration. Osborn acted as the agent, or officer of the state of Ohio, in bank, under an collecting state, act of the tax and if penalty unconstitutionally imposed: in such a case could be sustained jurisdiction against agent state, can it not be sustained why corporation against acting under an unconstitutional act Massachusetts, in agent collecting which tolls plaintiffs? belong contended, it is

In the second that this place, Court cannot take of this ease under that of the provision federal constitu- jurisdiction state from tion, prohibits of con- impairing obligation of the the charter tracts, as has not complainants been impaired. ascertain, necessary definitely, this meaning provi- constitution; and the sion decisions which judicial it. under made the evil was which' the

What constitution intended against to pro- that no state shall law vide, declaring, pass any impairing ? of contracts What is a contract, and what is the ob- obligation contract? of a ligation to be is defined contract between

A two or agreement more to do or not to do a The particular thing. obligation persons is found in the terms of the contract moral agreement,'sanctioned principles. and legal which this inhibition evil on the states intendea to was- pre

jí TERM, 1837. \NUARY ' Bridge et Bridge v. Warren of óur acts of By in the revolution. vent, repeated history found states, eventful in the different period, during legislation time and mode of was of contracts impaired. páy obligation law; and so far was interference ment altered were legis man and was well between carried, lation that confidence man nigh out paper system Those grew destroyed. proceedings were inflicted, felt and the which they deeply day; injuries time the constitution was at the adopted. provision country states from was following precedent prevent designed effects, in its and so destructive so legislation, demoralizing of a If it had not been commercial otherwise country. prosperity I Peck, Cranch, 125; of Fletcher should laid down in the case did not doubted, the inhibition whether apply exclusively arisen as well from This doubt would have contracts. executory of the mischief in consideration provision against tended to as from the itself. provision guard, language is the of a and it done; An contract would executed evidence thing seem, does either necessarily any duty impose or'obligation If a land to do act or state which it had convey thing. party void; not, the second it would seem to granted, previously the second the of the me,.because first, for grant obligation impairs because, not it: but no in fact it does interest in the impair having could none. The second the state would convey grant thing granted, in this on the same that it would be be void country, void ground if made the This is a of the com- England, king. principle immutable as the basis of law; mon is as derives justice. from the above of the constitution; nor does it provision, strength within to me to come the scope provision. seem contract, of the of a the mind seems ne- speak obligation When.we contract; contract, to refer to an executory cessarily untferwhich to be is an done, remains there obligation something oi^&pe to do it: No law of a shall both of the this ob- parties impair state This it in material does any part. prohibition altering ligation, but to terms used to the' to the apply remedy, parties and which fix their respective rights agreement, obligations. and the mode of distinct obligation, enforcing obligation, The former acts is ascer- parties, consists things. The other words of the contract. emanates tained by binding exercised at the discre- from the which be power, may law-makmg tion of the within the limits constitu- prescribed legislature, SUPREME COURT» Ritot v. Warren [diarios A modification of tion. for a breach of the contract, fhe remedy not, does the sense of the constitution, impair obligation. to be done, and the time of thing remain on the performance, their, face of the contract in all force binding parties; these are shielded the constitution, from interference. legislative

On the part contended that on the complainants, ques- tion of as in reference to jurisdiction, matter in contro- the Court must look at the versy, and decide the pleadings, point raised in the form The bill presented. act to esta- charges blish the Warren purports Bridge, right repugnant vested and that it complainants, impairs obligation of the contract between them and commonwealth; and, being constitution of States, the United contrary void. In their answer, the respondents the act deny corporation creating of the Warren contract sét impairs Bridge, obligation forth in the bill of the complainants.

The Court must .look at bill) the case made in the in determining arise; whether relate to merits or any questions may of the.Court. But in either case, are not bound jurisdiction technical or- by any found in the allegations may responses, bill and answer. ascertain the nature must of the relief They sought, from the of the bill. -tenor ground jurisdiction,

In this under the constitution question jurisdiction be examined em- free technical broadly presented; barrassment. Parker,

Chief Justice court, state in reference says, is, charter “The the government contract-of complainants, that this shall not' be neces- disturbed or unless impaired, demand; and if it so demand, shall shall be sity indem- grantees “ contract, observes, nified.” Such a he is founded upon' prin- constitution, our as well and it cannot natural ciples justice; without of the constitution of the United States: a'violation impaired against also, I it is of our state constitu- think, .principles tion.” conclusion of his Mr. Justice Putnam “ the opinion, says, charter, defendants’ the of the impairs

speaking obligation made to the It takes their the before away pro- plaintiffs. grants consent, uses without perty public -compensation, against without a for a It is therefore void.” trial by provision jury. the did consider Morton, Mr. Justice Mr. not Wilde, and Justice TERM, 1837. Bridge et Bridge v. Warrén al.]< either in of the violation consti- charter as granted having new States. or of the United state, of the tution no “That decree, the court say, property In their belonging use, taken and within public appropriated complainants the 10th article declaration of terms rights meaning of this commonwealth.” to the prefixed constitution be can, view, This in no considered as decree point fixing Massachusetts, it . construction of the constitution to this applies entered, forma, case. decree was pro opposed opi- .The nion of members of the court. two

But if that court had decided that deliberately unanimously not been use, had plaintiffs’ property appropriated Massachusetts; under still, the constitution of where the sanie point Court, becomes on a before this important question jurisdiction must decide for of this Court themselves. (cid:127)they jurisdiction could, in as a no considered the decision respect, consequence court, the decree above state whatever way question by can this been entered. But embarrassment arise on might head, form, made, as the decree was as a mattfer above bring case before this Court. Court,

To the counsel for sustain complain- jurisdiction that fact, ants reliance right, place charged great state; insist, that violated, is held from there directly that it will do state, on the im- is' an nothing implied obligation that, And respect, complainants’ pair -grant. from other different the Commu- rests rights upon very grounds state. held not directly nity, grant there is no the face of the On stipulation complainants’ grant that shall will do nothing legislature injure what, does is said that this is and on but it implied; ground grantees; fact, arise? Does arise from the complain- the implication of the state? ants are the immediate grantees admitted, can nothing principle grantor do as to rule as well to deed; his and this the state shall destroy applies force And same an individual. operates equal principle made the state or whether individuals. on grants, state, that arise on a made

Does implied obligation grant does shall do to invalidate grant, legislature nothing in the commonwealth? every deed arise state, and the constitution of bound by SUPREME COURT. Bridge Bridge River v. Warren et [Charles al.] admitted, that be the immediate cannot the state has grantee for the of his un- vested protection stronger guarantee fights against acts, than constitutional citizen of the claimed other any. by state, citizen for Every state. the his vested protection im- claims the This, indeed, constitution. th.e rights, guarantee the on the those strongest not to violate obligation poses legislature the to its its virtue rights. legislature Roes give grantee, an additional that will it not the constitution pledge violate grant, Such the state?' if it exist, can implication, scarcely considered the pot, to force of the But this is constitution. thing adding it is the said, the In addition protection invoke. complainants been taken al- without property having compensation, that their charter has been Warren lege the impaired by Bridge and, on charter; ask the of this ground, interposition Court. r charter not one, new does the old no purport repeal it in It not,

alter material immaterial does then, part. ope the rate but the upon complainants’ grant, thing granted. has, effect, taken the tolls of the them to complainants given In under words, public. charter, new all that is va luable under the charter has been complainants appropriated usé. to public

It is that the did not intend to legislature urged, appropriate that there is complainants; act of property nothing which shows an intention the exercise of the eminent legislature, domain, take for private use; that, but property the Warren contrary, appears Bridge'charter granted discretion, exercise asserted and legislative sustained by majority legislature. this charter made to owners provision .the of real indemnify if

estate, it should be taken for the use of the and the new bridge; in behalf of the required Bridge company pay, Charles River one-half of the Company, annuity college.

This would seem to show an intention to appropriate private pro- necessary, Warren establishment perty, Bridge; an intention to also to some indemnify extent, complainants, done them. There could other motive injury tnan ~ this, in new should hundred providing' company pay pounds. intention, pf can

But Court only judge legislature TERM, act, franchise of the when, its com- language; of the Warren taken, and, instrumentality plainants through use, is difficult to the public say Bridge Company, appropriated it has do, what' in fact done. did intend for the the counsel complainants Throughout argument taken and most contended that their had been ably appro- property and that to the use without priated compensation; the public making Massachusetts., void, act was under tne constitution consequently If the this be under its act; if, the character the pro- provisions of the has been perty complainants appropriated public purposes; as im- be it can be considered whether may important inquire the of the contract, the of the within meaning pairing obligation federal constitution. use, is

That a state public may property appropriate private admitted. This is incident to universally sovereignty, power are' be im- exercise, there restrictions on its such may no except discretion, its the It tax at itself. by may posed sovereignty use means for citizens; of its its wants adapt policy of its Under own laws. the promotion objects use If impair public private appropriation-of property constitution, then of a contract' within the meaning obligation is unconstitutional. From of this a state by every power exercise (cid:127) no whether compensation there is this conclusion be escape; not, the result cannot vary made no law is state shall not, pass impairing provision made; But the contracts, be unless compensation

obligation power state come to a If act within inhibited state. is.absolutely No act is condition which the' void. meaning provision, made, can that can' be it, be annexed to give compensation may land, law of in conflict with it validity. supreme is therefore nullity. in an payment,

Can state fixed day obligation postpone shall that a bond for the money discharged or provide payment This no one will money? than else any payment thing by clearly done, impair an act would contend can because such contract; and no state compensation, obligation could would make act valid. give, con- implied asked whether question provision be taken Massachusetts, may stitution of by property private incorporated in compensation, con- every is hot making impliedly Yon SI — 4 D SUPREME COURT. .Warren it;

tract made under and whether tlie of the contract is not obligation when is taken impaired, without property compensation? state Can the contract be within of the federal impaired meaning' when constitution, the action of the state is property? contract is not touched, but the covered the contract is thing taken' under the power appropriate private property public use. If contract, taking property impair obligation within the of the constitution, .it cannot be taken on meaning any terms. The of the federal constitution, provisión which requires to be made compensation when shall be taken for private property use, acts the officers of only upon the federal government. This case must the constitution of be.governed Massachusetts. state,

Can a form, exercise a any over contracts which power the constitution of expressly prohibited by the Union? The par- ties a contract embrace may making they please, conditions the conditions do not law, contravene the or its established policy. But it is not of a state to contracts which impose upon have, made, or which made, condition, afterwards be which is the federal conkitution. prohibited state.shall No the of contracts. Now, if the act of a' impair state, in obligation \yithin use come the property mean- appropriating private public of this not the and, is act inhibited, ing provision, void? consequently, to be too This would seem for And is it point plain controversy. clear, not that no contained the constitution of equally provisions jn a state, acts, or in its which the legislative of a subject obligation contract to an unconstitutional .state, of the control be can obligatory the of the citizens state? If the state has upon exercise attempted which the federal constitution power matter under prohibits, what form the be assumed, or what power may specious pretexts in exercise, favour its may the act is urged unconstitutional and void.

That a state take for use, is private contro- property no one. It is which, verted by from the foundation of principle, has been our sanctioned the of the government, statesj practice and has never been as considered in conflict respectively; coming- federal constitution. the of the state is This admitted in the but it is con- power argument; of the Contract has been obligation, impaired, tended of the has been taken complainants without compensation. property the constitution of Massachusetts that no land Suppose' provided TERM, 1837. 57b Bridge Warren al.J valuation, should be sold taxes without nor unless shall sell for it. of its notice value, two-thirds due some being given newspaper; a law of the should direct land to be sold suppose legislature taxes, without a with these would this act requisites; im- compliance which the land is held, within pair obligation of the constitution? The act would be the meaning clearly repug- constitution, and, nant state consequently, proceedings under it would not be be void. But the con- repugnant would how differ, the Union. And does this case stitution of principle, cases, In under both from one consideration? power but, the constitution of is the state it unquestionable; legislature if manner; and, not so must be exercised in a exercised, the particular if, Now, act is void. either obligation contract held is then it must follow impaired, under which property affects of a state act that every legislature private constitution, to the state and which is a viola- repugnant property, o of the federal constitution. tion constitution federal the construction depend Can constitution, which, the act to state reference complained doctriné, to be By ascertained the act, legal illegal? would constitution, to the state free done from ob- conformity constitution; but if this the federal under do conformity, jections not be free act would objection. This, then the iii exist, in, and state constitution make it effect, would incorporate part rule of No such construction constitution. federal exists. Massachusetts had taken the farpi Suppose house, of a for the use poor asylum forlünatics, complainants or, if, in compensation; making adequate without ascertaining had damages, law the state not been strictly pursued: could court supreme Court through interpose jurisdiction state, and form, arrest appropriation? thé would it not arise under made, could be con- question between state, and be limited citizens bf same stitution Does not the state local constitution, to the state jurisdiction? shall not taken declares property which private public afford a safe without citizens compensation, guarantee purposes, of exercise this a es- power; power of the state illegal against state, which is al- every to the well-being sovereign sential under its own rules? exercised ways aji been the complainants,

Had adequate compensation made SUPREME COURT. al.j v. Warren ct charter the Warren under would Bridge, question- Can doubt, raised? one that it was in the any power of Massachusetts to take the whole of the legislature complainants’ use, Is there by public compensation? making can control the of this exercise discretion I by legislature? it; of none, know either in the stateror out of but it must be exer- cised in subordination to constitution of the provisions state. And if it so exercised, be not authority judicial citizens, state between its own can only,, interpose prevent it in repair wrong, damages.

In all cases where is taken a private state for property is on the use, the'action and the if it property; exist in the power,- must be the contract! state, above does not act on the contract, from under it but takes And this vested when exer- rights. power, state, not, does in the sense of cised federal constitution, im- of the contract. Vested pair disturbed, and obligation but this is a made; must compensation subject belongs local Does this conflict view with the established jurisdiction. of this Court? A reference to doctrine will points adjudged not. show does that.it Mathewson, case Satterlee Peters, 380, the, presented facts. Satterlee was the tenant Mathewson,

following who claimed under, at the lease title, time Connecticut in Luzerne county, Afterwards, Satterlee Pennsylvania. purchased title Pennsylvania n for the same land. A was ejectment by Mathewson for brought land, the court common decided that pleas as Satterlee the tenant of the he could was hot set plaintiff, a title his up against error, landlord. writ On was reversed judgment court, on the that the relation of landlord and supreme ground tenant could not exist under a Connecticut title. afterwards, the Shortly a law, that, Pennsylvania under such a title passed landlord and tenant exist, relation should and the supreme court of the state decided that this valid, act was having question before this Court writ of error. brought their opinion, the Court “We come now to the say, main in the question cause. Is act, to, objected the con repugnant provision of the United stitution States? It is to be so, alleged particularly between, because impairs contract the state of obligation and the Pennsylvania who claims under her &c.’.’ plaintiff, grant, vested fee simple all the grantee, rights, 1837, TERM, 581 I';vcr Bridge et Bridge v. Warren al.] [Charles “ disturbed or &c. of Were these any privileges, impaired rights from the the act It does not under consideration? by appear record, drawn in any denied, that instance or ever were question.” was,

The the effect most the Court pressed objection upon this act was to law in Satterlee. divest which were vested rights “ States,” There United of the constitution certainly part the Court nor “which to a of this state law say, description; applies we aware of court which this, decision of circuit 'any condemned such a its law effect not upon ground, provided add, the the contract.” the Court And impair obligation case of that á state Peck, intimated, the Fletcher it is no v. where constitution statute, which a to the divests vested right, repugnant the United this case States. There between strong analogy the one under consideration. effect of the. the title act to defeat was, Pennsylvania valid, Satterlee, title founded the It made a the state. upon grant which, Court, had the very declared void by bee» Mathewson, suit, in that gave prior agamst of the state. was And this Court vested admit that grant divested federal act; but if is not they say repugnant constitution. The did act not which was to affect purport grant its left with covenants untouched; but created right, paramount took the land against grant. the case'under consideration, the charter does Warren not or in purport affect charter. repeal way complainants’ But, like the act, in its Pennsylvania effects vested divested Satterlee was not immediate complainants. grantee ,in of the state; but that could affect involved principle case. He- claimed under state, and the fact that grant there was an intermediate could state, between him grantee not weaken his right.

In the case of Fletcher Cranch, 87, v. 6 Peck, legislature to annul Georgia attempted own under which law, grant. the first issued, was and all to be attempted repealed; under it grants were act. declared to be null void second Here the state acted directly contract; comes case upon and the within the rule, that to contract, impair obligation state, law must act the contract.

The act of the legislature, the case v. of in complained Sturgis 4 Crowninshield, Cond. 409, con- Rep. had a direct bearing upon COURT. SUPREME River Bridge v.. was, tract. under the question whether law New bankrupt York debtor Was from his discharged surrender obligation and so his case of The Trustees of Dartmouth Col- property: Woodward, Cond. was, lege, Rep. whether the question could, without the consent of the alter its corporation, in a material charter a part, being private corporation.

In the case of Terret others 9 others, Cranch, v. Taylor 52, the doctrine asserted, is a uncontroverted cannot legislature corporation, statute repeal private thereby destroy creating rights. vested al.

The case of et Biddle, Green has Wheat. also been cited of sustain the the Court in case. this The Court de- jurisdiction case, that the which cided in that claimants compact, guarantied land under titles of from Kentucky derived lying Virginia, as under laws of existed the state they rights prohibited Virginia, those from In other words, of Kentucky Ken- rights. changing And when this Court could not alter were tucky compact. called on to effect the act of which consi- give Kentucky, they dered to the held the repugnant compact, they' provisions act.. to the compact paramount

After a careful examination of the this questions adjudged by Court, not to case seem have decided in that the contract of constitution, within the the federal impaired, meaning where not the action the state has been on the contract. That though been divested under an act of a state vested rights legislature, do not as consider .that under state, impairing grant And is held. is the distinc- this true property appears tion; has one, been the whole current view kept Court, this under clause of the consti- above adjudications tution.

Had this Court established the doctrine that where an of a act state affected vested held state, rights by grant the act is to the States, constitution of the United repugnant same must have For, to all principle applied vested as has rights. shown, been the constitution of a state same gives guarantee their vested to all its citizens, who as to those claim rights directly under from the state. And limit of who can define ju- risdiction founded on ? extend It would principle necessarily over the action ex- control, to fearful legislative states; and "a tent, the exercise of their powers. TERM, 1837. .Warren Bridge v. the whole of internal pervades improvement country spirit Union, where no state important

There public perhaps roads, &e. are roads, canals, rail as works, bridges, turnpike These cannot or in a state rapid progression. either contemplated, exercise without the power frequent appro- carried use. Vested daily priate private property domain. And in all these the eminent this exercise divested (cid:127) for the as a court correction cases this Court can act supervision in numberless instances.- If- errors, invoked power contract under take impairs obligation private property be called to determine in almost held, which it is Court may exercised; as well where case where every compensa- For, if this Court tion is it is not made. can take made, where whose on this every individual property jurisdiction ground, has. taken has a been constitutional of this Court; judgment in the mode whether made required compensation constitution of the state. has a demand claimant ascertaining damages, and that shall in strict be assessed conformity jury, damages To cases would of the law. these out for revise carve principles the constitution, Court a new contemplated jurisdiction,

and which be exercised. cannot safely our are out of admirable

These considerations which sys grow tribunals' both of tem of that should lead the government, judicial forbearance, in the exer the federal and state to mutual governments cise of doubtful The boundaries of respective powers. jurisd defined on so certain ictions can be clearly ques perhaps, never remark'is This tions, as to free them from doubt. peculiarly appli and con tribunals, federal cable whose powers delegated, of our consists in system limited. political strength sequently a strict can observance harmony; only preserved federal the state and Be government. respective powers case; in this I am has no this Court although jurisdiction lieving I am in on the side complainants; clear that the merits are bill for want jurisdiction. favour dismissing'the Mr. Justice dissenting. Story, of this Court, at term

This a former cause having argued Court for year, was, been' then held advisement under SUPREME COURT. ot ordered to be opinion among judges, again difference upon been at the term. accordingly argued present argued; term, at former were conducted with' arguments great research and been renewed have with ability; learning, equal at the research term. But the ability, present grounds learning, varied; in some and new been been, have respects, have grounds I ‘assumed, which distinct consideration. have examined require deliberation, with the most anxious care and and with all the case the researches of the between which years, intervening lights obtain; and last enabled me to I am the first have argument, I confess, that the formed after opinion originally free is that which now has most firm and first my unhesitating argument, at the term, so from far present conviction. argument shaking it, has at confidence served to confirm it. my every step the results of that I now shall be delivering opinion, compelled notice the the other and as the principal arguments urged way; discussed and raised issumed various topics objections distinct, forms; some of which and others answers; the same require that some will be should unavoidable occur in the repetitions pro- own resnect for the counsel who my My reasoning. great gress them, and the I cause, will, trust, be pressed importance a sufficient I course which have, thought apology for. great reluctance, thought necessary pursue.

Some involved in the case are of questions local And law. to the here, known according of this Court, we are bound principles that local law, act however different upon from, or opposite of other states it either is, or jurisprudence supposed seem to Other questions be. belong exclusively jurisdiction tribunals, as the state turn conflict, real or supposed, constitution the state and the between state laws. The only question, this Court over in this possesses jurisdiction (it being a state and not from tlie circuit is, appeal co.urt as has court,) at the whether bar, stated contract obligation within true intent and constitution of the meaning States United violated, as set forth in been the bill. . All has the other points incidents, before us are are only argued, preliminaries to this. made, has, however,

A as to the of question jurisdiction this entertain the Court to of writ error. present It has been argued that this has now become free and is the bridge, property TERM, 1837. 585 - etal.] v. River Massachusetts; state of cannot state be made a of party defendant to suit to its title to any try there is bridge; no difference between a suit the slate directly, against against , the state its servants And in further indirectly rough agents.' said, this that no tolls illustration of can be claimedin argument trust; this of under notion an the state court implied case trusts, but over equity implied only over jurisdiction express trusts; and, if this Court has no Over sub principal jurisdiction suit, it can matter of the title to the have none over ject are tolls, which but incidents.. In will be brief. answer to first My place, this-objection from, court, is a of under section writ error a state of twenty-fifth 20; 1789, ch. and in such a Act of there is Judiciary of clause of the drawn in the construction constitution any question and the decision the state court is United States, against it, this or under Court has a entertain set up title be the suit, and whoever to the ori decide question; parties or the state itself. suit, whether This private persons, ginal of Cohens v. case The State of decided Wheat. Virginia; the next the state of 264. Massachusetts not a place, R. party suit, in this and therefore the constitutional the record on prohibition suit a state does not any commencing against apply; the constitution is confined to the clause on the strictly parties .So it was held in Osborn The v. Bank the United States, record 738; Wheat. and in the Commonwealth Bank of Rep. Kentucky Wister, 2 Pet. R. 323. In the next nois place, objection even of the circuit of the United States, courts jurisdiction, state, defendant a or and the act servant agent complained if it be tortious and under authority, is done unconstitutional. in the cases last Court, held In the next it was place, So cited. court, has to do with the-nature as-an nothing ascertaining appellate state court over or extent jurisdiction persons, matters, laws; the state as to the given by subject or parties, same; so far as except respects very of exercising mode section of under the the act of 1789, twenty-fifth arising question ch. admit but few in this case which facts There contro . Massachusetts, act 9th passed

versy name March, 1785, certain persons incorporated of the Charles for the purpose building Bridge, proprietors XI.—4 E Vol. COURT. SUPREME Bridge Warren River [Charles al.] river, over between Charles Boston and and Charlestown; bridge thereof, to them the exclusive toll for from the forty years

granted of the first of time The opening bridge passengers. bridge June, built and In March, opened passengers, 1792, was created another for the corporation .by legislature, purpose river, over Charles from westerly building bridge part that occasion the Boston Cambridge; legislature, taking diminution of the into of the probable profits consideration extended the Charles River of the Bridge, grant proprietors from seventy years latter the first of it for bridge passen opening have, under these ever since continued proprietors gers. grants, emoluments from the tolls taken for enjoy possess arising and it has over concern. bridge; proved travel very profitable March, created a called the legislature corporation, Warren for the Proprietors Bridge, purpose erecting river, across Charles another between Boston and Charlestown. of the last termini (which has T been since bridge; erected, he of this was, suit, at the commencement the full toll, receipt a free are so near is now to that very and' bridge;) Charles River that for all be practical purposes, they may taken to be ide Bridge, same travel is accommodated each ntica l. and neces to a before it either, reaches point, which is sarily approaches nearly In short, from each. it is in a impossible, practical view, equidistant at the admitted so was argument, case distinguish where the from the one bridges contiguous end. beginning is filed bill of Charles present proprietors River of Warren for an proprietors Bridge, against Bridge, injunction, relief; founded upon erection of allegation, e under th circumstances, is a violation of Bridge, and so is void by the constitution of chartered rights, Massachusetts, the constitution States. The United su judges Massachusetts, court of were is well (as judicial known) preme, divided main opinion cause; upon and, equally points formá decree was therefore, entered, with a view pro be to bring Court the great fore whether the grave question, legislature Massachusetts, in the of the charter of the Warren Bridge, has violated constitution of the obligation States? United so, If inadvertence, done mistáke or I am quite sure it will last to insist its own act. upon maintaining It has the Union, that stake in and in the maintenance con

JANUARY TERM, 1837. v. Warren Bridge et . stitutional citizens, of its own Iwill, trust, ever found interests, to all local paramount to the feelings prejudices; pride and to the power, opinion. pride In order to come to conclusion in just regard only Court; which this as an question court; has sitting appellate to entertain a writ of error to a state court; it will be necessary to ascertain what are the conferred on the of proprietors the of Charles River act The act is cer- iñcorporation. Bridge not drawn with difficult, commendable But it is tainly any accuracy. of common to mistake its real any principles purport reasoning, “ entitled, It is an act for certain and object. persons, incorporating fiver, for the between over Charles purpose building bridge Charlestown, and Boston and the same the terlrl supporting during where, Yet it no terms, forty years.” any enacting clauses, confers thus created, the. authority upon corporation, nor does it build such state in what bridge; particular place commence terminate on shall or either side of the river, ex- bridge inference from the I and implication mention cept by preamble. threshold of the this at the as irresistible present inquiry, proof must, Couft in the construction of this act of that very incorpo- the. ration, to the common resort and principles interpretation; imply which the and has not declared^ presume things, expressly dp, Court were not at so to If the there would be an liberty end of cause. “ The act of a over begins reciting, erecting bridge river, in where the Charles between Bostonrind a.placfe ferry Charles- will be of is now and kept, town Thomas great public utility, Rus- others, &c. for the act of having petitioned, sell <and incorporation, ’ other, to build them said and many bridge, empower persons, act, such an tne have subscribed to a under fund for expectation and the aforesaid It then completing purpose.” executing proceeds of the fund or stock shall be proprietors to enact a corpo- the name uf the under of Charles River Proprietors ration Bridge; them the usual such it as the powers corporations, and gives sued,'&c. In the next section' it for the or- to sue and provides for officers; for corporation; choosing ganization establishing for and for and corporation; complet- rules regulations effecting, section, aforesaid. the next “for purpose executing ing, the said reimbursing money proprietors expend- purpose the said that a ed in provides, supporting bridge,” building COURT. SUPREME n .v. for established, the sole be, and toll thereby granted benefit for from’ years forty opening proprietors, bridge rates. In the next travel, section, for certain specified according built, shall at least feet forty provides, bridge .well materials, with wide, of and suitable or sound convenient draw “ vessels, &c.; shall be way same ships passage for the safe, aforesaid, and, term passable repair kept good, term, the said the said shall be bridge the end in like re- at left made, Certain other provisions pair.” lighting are-also draw-fpr toll-board, and ves- lifting ships erecting sels, toll &c. &c. The next declares, that, without or section pay,” “ commence, after the tolls shall shall proprietors annually pay sum Harvard of’ two college, university, hundred pounds and, at the said term the end of term, the said forty years; during to, the said shall revert and be the common- bridge property- wealth, said a’reasonable an- saving college university, the annual income of nual compensation ferry, have'.received, had not erected.” The next might bridge void, act, declares the act unless section of last built three from the within of should the act. years passing the of charter of Such is substance the which the incorporation, But, Court is to before called we can upon construe. enter properly of a consideration is upon preliminary subject, inquiry pre rules sented as to of interpretation to char applicable proper to or a Is charter strict liberal ter. receive construction? Are made, to be beyond terms? And if any express so, implications what extent are to of law? by’the principles -No justifiable doubts, contract, one that the charter is is grant; that.it such a belong to'receive construction contracts and grants, as laws. But mere has teen contradistinguished argument here, earnestness'; with unwonted and it seems to have pressed had elsewhere, an influence that this is irresistible charter to be construed , aas that such royal construed grant, always with a grants'are Indeed, stern strictness. it seems parsimonious conceded tacitly unless a strict construction is to it (and insisted prevail, is on as the dictate of common' there is positive infinite dan law,) to the defence of assumed on behalf the Warren ger Bridge proprie circumstances, . tors. Under such I feel myself constrained go .at into doctrine of the common law. large respect royál grants; I that, because cannot help thinking, er point very great TERM, 589 Bridge v. et al.] Warren. '[Charles e hav into the A rors insulated crept opinion argument. single taken as a seems have been axiom. general own position my I view; case, of the should not attached so much importance But it now fit it is should be sifted to the inquiry. bottom.

It is a well known rule in the construction of if the private grants, doubtful, the words be to construe them most meaning strongly But it said rule against grantor. opposite prevails, for, eases of there where doubt, the con grants king; struction is made most for the favourably king, against it The rule is not But is a rule limited disputed. grantee. very ? To it what cases does To such cases apply application. only, doubt, where there is a real where the admits two inter grant of which is more the other one more re pretations, extensive d stricted; an so that choice is either fairly open, adopted If violation apparent grant. objects without of two admits one which will make king’s interpretations, grant worthless, and the will it void utterly reasonable give ¿ffect, reason, then the latter is to for the (says prevail: common be,more for the “that will law,) subject, benefit honour which is Be more than the king, regarded his profit;” Co. Grant, a.; b; Com. G. R. 131. 10 Co. 12; R. 67. 6 Co. Dig. R. 6. is made bend case, And the rule to the real every justice and strained the case. No integrity construction is to extravagant be made in if the And, intention of favour king. grant obvious, a fair and liberal of its terms is interpretation enforced. The rule is also with, itself cases expressly dispensed where face, to flow, from the appears upon solicitation but from the certain and mere special grace, knowledge, the subject crown; or, as it stands in the old “ex royal patents, motion scientiá, certa et ex mero motu (See Arthur speciali gratia, regis;” b.; 109, 112, Co. R. Sir John Moulin's case, Legate’s 6 Co. 347; 6;R. 2 Black. Com. G. Grant, Comm. ‘and 12.) these Dig. words are in most insérted grants of accordingly modern crown, in of order exclude narrow construction them. So the court admitted the to be in doctrine General Attorney v. Lord Price, 8 69. But a most Eardly, of important qualification what is rule, did made for a never considera grants apply valuable tion by the crown for, in such same rule has always grants as in cases of a between mere prevailed, subjects. bounty COURT. SUPREME 590 Brióg Bridge v. et al.] be restricted to its obvious intent. But may of properly king value that liberally the contracts king expounded, never be government jeoparded justice dignity evasions, subtleties. and technical petty books, all the cases in the these over I shall recognise go are abundant. of them will be found they Many although principles, F. 2, 604; in Bacon’s 602 Prerogative, p. collected Abridgment, Grant, 12; in G. on the Chitty Prerogatives in Comyn’s Digest, I shall 16, s. 3. But dwell on some of the more Crown, of chap. on those which relied especially mainly prominent, defendants; because, humble teach my on by judgment, from what has been insisted on. Lord different doctrine a very Quo Warranto, on the Statute of in his Coke, Commentary an I., makes this notable remark: “Here is excellent rule for Edw. liberties, lands, not only construction but king’s patents, and other which he tenements, may lawfully grant, things, them, or narrow for the no strict overthrowing interpretation is, to have a earundum plenitudinem sed secundum judicentur; construction, for the liberal and favourable them available in making ad the honour law, Surely, plenitudinem, usque king.” for a more broad would contend beneffcent more no lawyer expo whatsoever, than this. sition any grant is not cases of there So in implications respect royal grants, either difficulty, upon authority principle, giving slightest effect so as to include which are them large things capable of a distinct remarkable instance of A.very subject grant. being under the II, arose Statute Edw. Stat. (17 this sort Prerogative, declared, that when the a manor ch. 15) king granteth with unless he mention appurtenances, of land makes express advowsons, deed, manor, &c. to such writing, belonging to himself Here, reserveth the sta then the king such advowsons. Yet, a strict rule in Whist tute itself prescribed interpretation.* held, Co. R. it was (10 ler’s of a manor 63) royal grant a manner as it to the came appurtenances, ample king’s an hands, advowson, manor, which was conveyed appendant from the words used, and the intent. implication actually apparent This case certainly very strong raising implication of different the statute had words where susceptible interpretations, rule for a construction, narrow the adv furnished positive excluding

* P. in Atty. Sitwell, Rep. S. General Younge’s

JANUARY TERM, 1837. 591 Bridge River [Charles al.] owson: So, it has been if decided that king grants messuage and all lands aut cum eo spectantes, dismissas, lands which have been for a time, convenient enjoyed Rolle. pass; Abridg. 30; 25, 169; C. Cro. Car. on the 16, ch. Chitty s. Prerogatives, p. 393; Grant, short, Com. G. 5. wherever the Dig. intent from the clear, words is a reasonable possesses certainty, same con struction in crown as in prevails grants, private grants; especially where the is to be from the grant presumed voluntary bounty crown, and not from representation subject.

It has that there is a distinction supposed, argument, between held lands by franchises grants king, grants which are matters of and held the crown for prerogative, by benefit of flowers of I know public, of no such prerogative. Coke distinction; and lord in the cited, passage already expressly it; excludes for he insists that the same liberal rule of interpretation is to be to cases of of liberties, as applied to cases of grants grants of lands. aware,

I am that Mr. Blackstone, Justice Commentaries, his (2 Black. Com. has laid down some rules 347) from apparently varying what befen stated. He “the manner of says, by granting king not does more differ than the by subject, construction of his when made. 1. A made grants grant at suit of king, be shall taken most for the beneficially grantee, king against whereas the of a most construed party; grant subject strongly &c. 2. A shall be construed against grantor, subject’s grant include besides what ate if njany things expressed, necessary Therefore, in a operation grant. private grant profits one free lend year, cut and ingress, egress, .regress, those are also &c. But carry away profits, inclusively granted, intent, not enure to than that which is king’s grant-shall land to an alien, As precisely expressed, grant. he grants for such shall not enure to make him operates nothing; grant denizen, that so he to take Now, in may capable grant.” relation to the last or unnatural there position, nothing strange that a crown shall not enure to a different holding grant totally pur from that intent; which is or to a double when all pose expressed, its terms are satisfied is one intent. It by single thing grant land to an alien and a different to make him a denizen. quite thing The one is other, not an does it flow incident nor naturally alien, from it. land to an when may king willing SUPREME CO.URT. Bridge et v. Warren of a him the not be he privileges subject. may give willing hold take land may grant, known that well alien does the latter but and it go every person king, it.against that,- time, the mean an alienation found; until office' so alien, is not therefore, to utterly A alien will be grant, an. good.- And, in this effect, not indefeasible. takes it is void. though .difference, a a between does seem any by grant not respect, there, crown; for of the latter takes grant private person, C. See Com. Alien, it is to be defeated. effect, Dig. liable though cases, is not in such 1 4 Leon. 82. 4; 47; Leon. The'question be but whe in a crown there not implications grant; whether a shall be to crown different effect ther a given grant totally in En same was acted its terms ‘what principle upon purport. 14, R. case; Coke, a. There the crown had demised cer 7 glefield’s by attainder, to a tenant for life' lánds were forfeited by tain to a for crown entitled years; being. certain forty persons defeat the over after the death of which would remainder condition to the attainted, tendered of the condition performance the person he man, demise; contended, who was a stranger remainder held, was the demise the condition was And it suspended. that by double'intent, should not to a demise viz. pass that the operate for' also, in the condition: favour a term, suspend stranger, crown shall 'be taken according said), grant (it “the extend and shall not comprehended grant, express interitiqn doth construction thing implication, that the intent did extend to;” though might appear grant, in the case of a been different subject. Blackstone, Mr. to the other Justice may In position regard assert; a that he that in crown means be grant supposed for to take the of land a free year, ingress, egress regress profits a are not included would be in sub as by implication, profits, If he under a mistake. his is certainly meaning, grant. ject’s each;, no The same.construction would otherwise put upon sense, It isa of common would principle -pass by grant. thing law, is ne as that' when whatever as well thing granted, to its also. -It is not cessary enjoyment granted presumed therefore, if it admits of and, means to make void two grant; king constructions, that be followed which will secure its shall validity 11. Grant E. Co. Comyn’s (Com. Dig. operation. Digest 5; 4, 56, (it Book 1 Hen. Litt. cited from the Year a.) case is land, pertincntiiSj cum 6, should be if there be a.) grant TERM, 1837. 593 the common to which common an passes incident, appendant, said, So, it is even it be the in the same king. though case, foundation of an to me the abbey, corody king grant So, fair, if the to me a shall passes. court king grant as incident thereto. And there áre other cases in the Piepoudre, . books to the same effect See Bac. 2,F. Abridg. Prerogative, p. 602; 12; case, Chandos’s 6 Grant, 55; G. Lord Co. R. Comyn’s Dig. Sir 29, Robert 9 Co. R. case, 399, 409; Vent. 30. Finch Atkyn’s in his law, treatise on the contains common beyond nothing authorities; 24, 1613; b. ch. edit. Cro. Eliz. Law, Finch’s 2, p. 591; Popham, 13; Per C. J. Vin. O. c. pl. Abridg. Prerogative, Com. Franchise, 2;C. Inst. Dig. Coke,

Lord after the decision of Sir John stating Moulin’s Co. R. “Note (6 adds these words: ancient 6,) gravity of the law to his beneficially construe sages king’s grants literal construction subver honour, and not to strict or make admonition, in humble my sion of such This is judg grants.” acted who ment, upon fit to be remembered judges, very and the citi government are called between interpose Co. R. case (10 contains Legat’s 109,) cases of zen in public grants. the general doctrine degree impugns that in the slightest nothing, of the proceeded upon plain fori interpretation here contended and no were necessary of the grant; implications words very full effect. to give proper, Banne, of the in the decided Fishery Ireland, of Royal case 1st, 8th James (Davies’ council in 149,) Rep.

in the privy on to establish the shall point; relied king’s pass much grant circumstances, That its actual by implication. upon nothing conclusion. The was of a no such owner sweeping king justifies Banne, the in na in on river (which material,) fishery gross, royal flowed, the tide ebbed and about two where leagues vigable'waters, of sea; Rout, and he to Sir R. M‘D. the the territory granted of the of and’ to the Antrim, county which river parcel adjoining is; the said the Banne,.in part fishery grant containing where' words, castra, “omnia &e. messuagia, piscarías,, following &c., ac alia cursus, hereditamenta omnia aquas, aquarum piscationes, ex-' Rout, Antrim,, comitatu dictum, infra territorium de in vel heredibus et successoribus nos- et ex hac concessione nobis ceptis, reseryatis fluminis de Banne.” iris tribus partibus piscationibus was, in the royal whether fishery question grant passed Vox,. XI. —4 F SUPREME-COURT. S94 Bridge Warren Bridge v. held, first, not; Banne to And it was that it did be- grantee? flows, Banne, cause the river so far as the sea-ebbs and is a na- royal river, there a because royal fishery fishery; secondly, vigable of this of the land ad- no royal by could fishery pass part grant fisheries, of all the or within by general grant joining, [in of for this- not Rout;] royal fishery territory -appurtenant but is a of inheritance of land, fishery parcel gross, in the not itself; and shall pass' crown words king’s general grant to the which crown royalty, belongs by prerogative; special this of of three by exception thirdly, grant parts fourth of this the other did'not fishery part pass grant; fishery, shall and for nothing implication; king’s grant pass 7, 13. 2 Hen. cited was case, which is

Now, there is in this not explicable easily nothing awas interpretation. fishery common principles upon Rout; and not fishery territory gross, appurtenant royal Cresswell, 265. The Willes’ R. terms of the were grant Ward in and within this and this territory; fisheries excluded any of all . it, or not within to it appurtenant then, not The predlises, fishery not, construction, iri did just fishery convey clearly not within territory. for was The only remaining question, of three whether the was, would, im exception quarters, question was fourth not part is, carry excepted; plication, in a crown should grant terms be construed exception, whether It is and not exception. harsh certainly be terms to hold, common rules interpretation that an application such a in the natural change required meáning implication to be allowed not crown. words, ought prejudice not at the time constat, that supposed, might Non king only that he was owner parts three fishery, the grant, case of the of the Banne, This the fourth part. fishery Mr. Justice Bay ley and commented delivering cited of the Duke of the court the case Somerset v. Fog opinion Barn. and Cress. 875 and same 885,) the view well, (5 was decision, which the has been here of the stated: grounds taken that it was further in that case, learned that agreed the judge adding, e of th by implication; king nothing' by h passes grant terms, mean, to which its do not, be must nothing, fairly understood a construed, embrace as of or incident to reasonably portion matter the gránt. subject 7, to the case cited Hen. 13,

As the sole au- (which was 1837. TERM, There, different a principle. relied it turned very thority on,) he a man that might give letters granted by patent king s’ouls, certain pray to a chaplain marks annual rent twenty for un was not void was, whether &c.; grant and the question stress And principal was named. as no certainty, chaplain be been, this license should whether seems to argument ca create corporation construed to create or enable grantee it was In asserted the argument pable taking rent. create a construed, be implication, should not king’s, grants fact, In how intent. or to enure to double point corporation, of the Juridicialia, I that neither ever, per find (Chronica p. 141,) case, at time sons, in the was whose are stated opinions judge so was; that it what the nor does decision appear argument, case of counsel. The same is whole is but the report argument Coke, (10 lord in the case of Sutton’s Hospital, fully reported by. record, 27, who he had seen the Co. that Rep. original 28,) says at appears who large, gives judges opinions Coke, Note, And so lord held valid. was says “ grant intents, to make reader, this enures to these viz. grant king succession; So, and to a rent.” to make a incorporation; that here we not construed case, royal only grant being all but made not at founded in liberally, divers implications being was, of which lord (as terms of The reason express grant. Coke charter made for the erection of because the says,) king’s works, taken the most fa charitable shall pious always This vourable and beneficial sense. case recognised And was law, as sound Sutton’s ease judges Hospital. that in a charter incorporation by admitted clearly judges*, annexed, were crown, to a tacitly the incidents corporation sued; named; purchase, to sue as although &c. And hold, lands; &e. alien to make by-laws, alien, the latter but no follows clause expressly given purchase, Franchise, 6,F. F. incident; as an by implication, Comyn’s Dig. authorities, F. of such teeth difficult to affirm very as is to be taken by implication; king’s grants nothing 149. The case asserted the ease Davies’ Reports, gravely obvious, it is truth, cited to it is it. directly support against counsel, for the learned mistook the mere arguments judges decided, is a direct solemn of the court. And the opinions the other authority way. SUPREME COURT. Bridge v. [Charles Rivet . al.]

The case of Blankley T. (3 R. Winstanley, has also been 279,) relied on for the same purpose. it has But with do the nothing The court there held that the in point. the of saving very body the charter, concurrent of jurisdiction the county magistrates was There was said preserved. by the nothing court, in respect The, crown whole implications grants. turned argument upon of clauses. meaning express

Much reliance has also been placed of lord upon language Elsebe, Stowell in the 5 Rob. 173. The main case in that question was, whether the crown had a to release right captured property without the of before consent adjudication, That captors. ques tion effect depended upon orders in king’s council, his, for, the parliamentary act; proclamation, prize independently was.cleár, acts, these it that all captured belli, property, jure belonged crown; and was its sole subject Stowell, Lord disposal. whose as eminent entitle him to qualifications judge reve great “A rence, said, on that occasion general from presumption arising is, these considerations does not to' mean divest government itself this attribute universal for such conferred sovereignty for as well as used so (to- unless purposes, peace, war) clearly with this unéquivocaíly. expressed. universál conjunction taken, also, must be the wise of our. own presumption; policy pecu law, which crown liar .the interprets grants respect, by rules than which are those applicable construction an of individuals. individual presumed grants Against benefit, meant to the utmost that his convey liberality he will bear. It indifferent to the in which words public, person remains, in the or the taker. With interest whether regard grantor it is not held far otherwise. It is- sovereign, himself shall and no alienation sovereign private property, Now, what is except clearly indisputably expressed.” presumed, in that was captors words right given order council to seize was only. right bring king’s was and the right duty then adjudication. given, to'seize If hád more in- bring adjudication imposed. nothing that, existed, have, it would- be clear the Crown would general Then, in the act" captures. again, prize prize pro property gave captors adjudica property clamation after tion, as lawful not before. naturally limitation prize,’and This very in, that until had implied, property. adjudication they TERM, 1837. .597 Bridge et Bridge v. Warren lord Stowell his And is the placed judg ground, acts; tírese ment, as of a reasonable interpretation the clear result considerations of to rely any reasoning declining l Stowel was not lord it is tó be considered And policy. franchises, in the com land, of an speaking ordinary grant attri but of mon course of mere sovereign municipal regulations; and of war duties butes and prerogatives, involving great motive, and where, every and policy, peace, public upon every there be hesitation of rational interpretation, great ground might of a fair the terms beyond grant interpretation. extending But, stated, is, I is material to be this what most all repeat, a construc to the doctrine in relation having king’s prerogative mere favour, is confined to cases of tion- own exclusively his from the of the crown. Whenever donation, bounty flowing ceases; consideration, a of construction is the rule valuable upon grant as in the case of a is it would be exactly pri and grant éxpounded is rule to the Why adopted? vate favourably grant, grantee. cpntract, is a and is to because grant interpreted Plainly, to of the to its fair would be the dishonour meaning. according consideration, a then fair and it should pocket government, and of its own obscurities contract. implications quibble lord and of the Coke, Such doctrine of venerable was the my sages, times, when a to was of the law resistance prerogative of arbi to a from office. Even in worst removal ages equivalent did not to irresistible hesitate trary power, prerogative, ,ain to declare, that contracts founded valuable consideration ought crown; for be construed honour of the liberally subject, Franchise, Co. Inst. 496. also Com. C. F. 6. If we are 2 See Dig. rules construed to have applicable grants but common follow them is through royal justice grants, out, for the honour of this common republic. justice than that of the not, wealth deemed less (I will extensive trust,) crown. demonstrated,

I that I that it is think authority, upon not, not be admitted true, means implications may ought what I I to crown And would conclude regard grants. Mr. Justice head, a made the late Chief remark say his Parsons, extraordinary genius, remarkable for a lawyer equally and his “In learning. prerogative professional England, cause is the cause Here, one against against whole. SUPREME COURT. River Bridge alj v. Warren Ini the first one. and vices, virtues, as well as the feelings it; are enlisted therefore, the last in favour of it. against And, here, it of more importance courts take should judicial that the claim of care should be more prerogative watched strictly Commonwealth, Martin v. Mass. R. 356.

If, then, the were the case I present royal should most grant, both contend, Strenuously upon principle that it authority, a liberal, receive strict construction. I should con- so tend intent charter, from its plain nature and objects, from its burthens and duties. It is case com- confessedly tract, not of a case of bounty; contract for a valuable considera- tion; for objects public utility; to ad- encourage enterprise; convenience; vance secure just remuneration outlays What there in large private capital. such a crown, which should demand from court of narrow justice of its strict interpretation Where is the authority terms?. doctrine, which contains such a ? a'conclusion justifies Let assumed., and it not be then reasoned from, as an con- undisputed If common law carries in- cession. its bosom such a principle, authorities, it can be shown some by bind the ought .to judg- if ment, even do not convince the all In understanding. my find, I not researches have been able to whose reach does any, not far, fall far short of very doctrine. establishing any Preroga- has never been in tive forward its own wanting claims for pushing But it has indulgence, never far I exemption. (as as yet know) to this them pushed extravagance.

I stand the old law; law established more upon upon than three in centuries cases contested with as much ago, ability learning, as annals of our any. in jurisprudence, such en- resisting croachments and liberties of citizens, secured by I will not to consent shake public grants. their deeds, title by any niceties or speculative novelties. not the case of present, a royal but of a grant, however, a statute. of

legislative grant, by public The rules the common law in have, relation royal therefore, grants reality, do nothing the case. We are to of act with give rational incorporation fair construction, to the rules which in. according general govern of cases of We exposition statutes. are to ascertain intent; and that legislative ascertained, once it is our duty give to. Ml liberal of books are full cases operation. TERM, v. effect; 28; 10, R. R. Bac. Sta Parliament, Com. Abridg. Dig. [see. indeed so common sense common tute;) principle plain it. Lord Chief stood need authority justice support Bull, 136, 463, of Boulton H. (2 in the case v. Eyre, 500,) Justi took notice of. the of a disctinction between the construction crown and a an act of and held the rules of the parliament; grant, grant law, common introduced for crown protection respect its to a an act of own to be parliament. inapplicable grant by grants, “It is to be his “that there is tech (said observed” lordship,) nothing nical in the of an act-of In the composition parliament. exposition statutes,- laid the intent parliament guide! expressly do not here (I down in our books speak statutes,) every penal that letter, statute to the but the expounded, according ought he said: “This case was to the case of intent” compared Again, in his But I am not satisfied, deceived that grants. king being is in advice parliament, king, proceeding to which is under the he situation, in protection respect special could on that that he be considered as law; and deceived in ground No case was cited to his prove position.” remembered, it is to be that his Now, lordship speaking upon, nature; act of of an an parliament private the construction act of 'a in the nature act monopoly; parliament of parliament for an invention to the an exclusive celebrated Mr. patent granting that his added, let it be And opinion validity Watt. act, all the obscurities of the was ulti notwithstanding that grant, bench sustained in definitive king’s mately judgment doctrine, 8 T. Boulton, Hornblower R. 95. A favour; see liberal has been su repeatedly recognised just equally case of Richards v. court of Massachusetts. Daggett, preme Parsons, Mr. Chief Justice R. 537,). Mass. delivering (4 court, “It is to be said; always presumed, the opinion acts, most beneficial construction when intend the see also Inhabitants of of them is not Somerset apparent;” the design 12 Mass. 383; of R. Whitney v. Whitney, Inhabitants Dighton, v. Holbrook, 1 523; R.; R. Holbrook v. Pick. 88; R. 8 Mass. 14 Mass. to mere 458. Even relation Pierce, pri R. v. Mass. Stanwood citizens, and the accommodation statutes, made for particular vate law others; courts affect the privileges construction, if it arise from necessary them a will give impli large Mass. R. Williams, 4 cation; Coolidge v. SUPREME COURT. alj Bridge et Bridge v. Warren the manner

As to parliamentary grants private construing which, there are decisions, some recent enterprise, my judgment, two establish very important directly principles applicable case; which, if I views, not of the which have confirmatory present maintain, endeavoured are at léast not to them. repugnant is, that. all as of this sort are to be construed grants purposes 'first between the and not as mere contracts and the government grantees, laws; is, the second construc are to a reasonable receive tion; terms, if either inference their upon express by just terms, out, from the is to the- intent the contract ean be made be enforced But if the recognised language accordingly. out, or if the inference be not then clearly made ambiguous, contract is to taken most and most strongly against grantor, for the The first case is of Pro favourably public. Company Hustler, Leeds Canal Barn. prietors Liverpool (1 v. where the Cressw. was char the terms question upon 424,) a ter, toll. The toll was boats granting payable empty passing of the canal. The Court “no said; lock toll was expressly imposed boats, &c., and we are called upon empty upon say toll was inference. Those seek to imposed by who a'bur- impose then should take care that their public, claim rests upon Here the claim is no means plain unambiguous language. The next case was clear.” Dock Kingston-upon-Hull Company La Marche, Cresswell, Barn. and where the question v. (8 42,) to a off right wharfage goods shipped quays. Tenterden, Lord of the.court in indelivering the ne judgment said; “this was clearly made between a gative, bargain company and the adventurers and, as in public; cases, similar many terms are contained in the act: and the bargain plaintiffs can claim which is not nothing clearly next case is given.” Proprietors Canal Barn. (2 Stourbridge Wheeley, in which the Adolph. was as to certain question tolls. 792,) Tenterden, Lord court, said; “this delivering opinion likp other cases, is a many between bargain company adventu-. rers and the the terms of which are public, statute. expressed the rule of And construction in all such cases is now established fully this: That to be in the terms of the contract must ambiguity the adventurers, operate and in against and t'Ae favour public; claim plaintiffs which is can them nothing clearly given act.” it is “Now, certain, that the quite company expressly given to &c.; there receive compensation, except, TERM, 601 Bridge River v. Warren [Charles show; fore it is incumbent them to that upon right, of inference from some other the clauses.” This clearly given by statement, shows, latter that is not that if indispensable, grants sort, the contract or the terms should be in ex bargain it is if sufficient im press language; they may clearly proved by or inference. plication

I admit, that where the terms are to burthens grant impose or to a restraint to the upon create public, inte- injurious public rest, there is terms, sound reason for interpreting ambiguous, in favour of I insist, But at the same that time, public. there not the for reason even in such a slightest saying, grant is not to be construed to the so as to favourably grantee, secure him in the of what is enjoyment actually granted.

I have taken more time in the discussion up than, point the occasion because of it3 perhaps, required, importance, zeal, earnestness, with which the learning, argument strict construction has been Court; as pressed in some upon sort vital the merits of this I the more confirmed controversy. feel own views my consideration, upon subject, every of the state court, in his judge admitted, opinion, either delivering inference, -the directly, I very principle contend. Mr. Morton, Justice who the doctrine a strict pressed construc tion most at the said; same no strongly, distinct “although time will I thing do not mean pass by implication, yet quesT tion, that the words used understood their most natural should sense; and obvious and that is essential to the whatever enjoyment will be thing the' granted necessarily implied grant;” Pick. R. 462. Justice “in said; Wilde doubtful cases Mr. it.seems me a sound and rule construction to wholesome interpret pub lic most grants interests, and favourably public “ not to be When enlarged implications.” therefore doubtful makes franchise, of a it is not to be extended construction its clear obvious beyond meaning.” “ There are some doubt, admit of legislative dif grants, ferent rule of construction; such as of land on a valuable con grants sideration, and the like;” 7 Pick. 469. two learned These judges were adverse to the claim. But the plaintiffs’ two other learned who were in judges, it, favour a much took broader and more view of the liberal rules the charter. interpretation An attempt has, however, made the case put legislative

Vox.. XL —4 G COURT. SUPREME al.j Bridge et construction; to their same upon royal grants, as grants footing some royal legislative supposed analogy between- grants a claim in under our forms of Such republican government. grants has been new; and no authority favour republican prerogative affect to have, Our nor cited which it. neither supports legislatures constitu is no in the There royal provision have any prerogatives. from the tion to- be construed differently authorizing .their grants in to the matter. like private persons, of grants regard subject exclusive law, of the common crown so many policy gave sub claims, and those of different from extraordinary privileges, measure, if was founded in a not upon ject, good altogether, a or at least sense of their exalted dignity divine upon kings, notion, that they over and and upon pre-eminence all'subjects, favour, for their entitled- to protection kingly are peculiar and office. never er Parliamentary jrights grants joyed sense construed to common were They always according privileges. What and their common language and intent. reason,'upon similar there, that acts should not receive a is our reason législative our Is it noc at least in free important govern interpretation? much his and have as ments, that a citizen should security of the as he have in from the would estate derived legislature, grants is there to that the words a What solid ground say, England? and in citizen, mouth a shall one mean thing, grant another shall mean That regard mouth thing? shall citizen, word in case of every any question to the grant him, or be construed and implication regard against interpretation word be of the shall construed in its government, every to the grant construed, be not to its That shall natu according favour? language sense, from its own and the and proper objects ral import implications instrument; as it is but shall change spoken by meaning, them? one There be whole very solid people, .the nor to neither charters be extended say, grants ought grounds words; fair of their that no reach implications beyond ought deducible made, which are not from the clearly language, nature objects grant. of a there is In the case sur- grant, legislative ground impute to the same in a mere mistake extent as private imposition prise, of the crown. The words are the words of the legislature, grant deliberation, examination, and debate. solemn Their upon pex- known, to be well presumed are port public interests TERM, 1837. 603 v. Warren et-al.] [Chalíes locál, watched, and varieties of personal guarded by pro- zeal of fessional as well as de- numbers, untiring jealousy; voted service. mind, also that in should constantly kept construing

charter, we statute construing political powers involving in the case of Elsebe, like those involved sovereignty, Rob. 173. We are R. construing legislature, statute, the form of a is still but solemn contract though 'to such a the true ascertain the sense course of the parties instrument; from the once ascertained, terms give Coke, indeed, rule, full effect .Lord recommends this as best “ even The best respect royal grants. (says he,) exposition”" is, charter consideration the whole king’s char “ ter, itself; the charter the charter "material expound every thereof to the true and part [being] explained genuine according ” sense, which the best method. of Sutton’s Case Hospital, Co. R. b

But with view induce the Court withdraw from all. to. rules common of reasonable and liberal in fávour of interpretation we been at the .told that this charter is grants, argument, very a restriction that it inis of upon legislative power; derogation state, andrinterests of the and the that it tends to rights people; "and and that will monopolies, exclusive it inter promote privileges; an barrier of insuperable Now, pose progress improvement. one of assumed, these which are every not upon propositions, and, I not, a if I did I directly opposite proved, opinion; entertain not to admit the for which am adduced. prepared conclusion has a or of made involves all these any grant, legislature If courts, it is not for overturn plain consequences, justice it has been of the because or sense grant, improvidently injuriously made. !

But work of This deny the1 very ground argument. charter I (as said) is.not restriction already any upon legislative unless true, it be that because the cannot power; legislature grant what it has is restrict- again, already granted, legislative power so, If then ed. of the land is a restriction every grant public a doctrine, established, that has power; never nor yet (as far as I ever for. of a know) contended franchise Every is, grant so'far as that extends, grant cannot be necessarily'exclusive; resumed, or interfered All the learned state judges with. SUPREME COURT. v. Warren , franchise Charles River admitted,

court whatever Bridge, . not or with. resumed, could interfered be, it legislature it. not recall its or It is a contract, whose obli- destroy grant, could In cannot be it does constitutionally impaired. respect, gation case, land, a lands. each differ grant particular franchise, is withdrawn from the opera-, or particular legislative land, or the identical franchise, identical cannot re- tion. or avoided a' new But the grant. power legislative granted, (I unrestricted. The matter it) only remains subject repeat If from the hands should government. passed stock, a debt .0 be a sale of the order paid by government public is so of the it over funds paid, legislative govern- unrestricted, remains has ceased over the ment although particular which has been thus sold. For the I stock, over present, pass as it will come further consideration topic, necessarily again of more and com- broad review, under examining objection nature. prehensive is it that this

Then, how established aga'in, grant deroga and interests No citi individual people? tion rights waters; build and con over has any navigable zen of no when a is made he any is deprived right, grant sequently or for that Whether purpose. promotes injures other persons citizen, of an individual constitutes no interest ground particular interference, what his own beyond rights jus legislative judicial When, then, said, it is grant derogation tify. we must understand that re people, interests the. rights whole interests common to the is had to peo rights.and ference to them as the such, (such navigation,) belonging pie, words, and interests or, the rights as a hody; political how of a franchise is Now, I understand cannot state. grant state, more than from the people derogation land. the ex eách á right, gone from, so far be said -to the may derogate tent of thing granted, of the of the or the But lessen state. is to to say, rights people, that for, is dero the not sense argument pressed; that is the which or detraction from mischievous is here meant injurious gation, hand, there can be of the state. the other On the sovereign rights it such, the of the as except ap from people, rights derogation aof before; the there bridge common building to plies rights said that If it had been is not. certainly waters navigable over TERM, n of the common was in'.derogation of this right bridge the grant reason of its River, Charles obstructing, pro the navigating would have been in tanto, ground a free passage, open of the So, if had been an exclusive grant navigation telligible. time, of a But, if at the same equivalent public rights stream: that use, accommodation and had nature, but public greater different said, sense,. have been correct in. obtained'; it could hardly or from rights people, there any derogation, state; mére It be a one would exchange public another. the interests of Then, to as grant being against peo- again, established; and I that is is not to certainly know ple. .how will be contended that It every be assumed. hardly grant to the interests is people; every injurious government, .so; must The erection of of a franchise a bridge grant necessarily to be of the people. may essentially, may highest utility pro- aid the convenience, mote public public interests, pro- if no be found And can tect to public persons property. willing work, unless receive in return- the exclusive Undertake it, toll; it cannot said, erecting taking surely privilege such a under such- course, circumstances, grant, se, is,-per the interests Whether of a franchise people. grant against not, whole, or is on the motive is, interests; is pro public of fact and which different minds en- judgment, question It is not to be different tertain assumed to be opinions. judicially reasoned down. is a grant then be. matter injurious, Jt confided consideration of sober the. exclusively legislature; with discretion, -full invested means to possesses ample it. For all due myself, decide meaning speak deference for I of no others, know confided to the authority judicial- de- decisions such, a partment, rejudge legislature upon sub- It has an exclusive to make the decide ject. grant, and not; or be be, for the interests. -whether It is public to be pre- made, if- that it is sumed, made sense of high welfare, and to establish public duty, promote the pub- lic In this has, prosperity.' very upon' very act, face solemn declaration as to the motive fof -made pass- it; that —“ The of a over Charles River, &c., will ing erecting be of utility.” great public

What court of invested with justice authority gainsay 606 SUPREME. COURT. Bridge Bridge River v. et [Charles al.] Warren To strike it out of act,

declaration? reason upon other it if were not there? To words, as that a is pronounce grant against which the the interests people, has declared to be to It seems to me utility to be our people? to in- duty great laws, and not to wander into speculations terpret policy.. ask, I is whore, that Charles may proof And River Bridge of the interests record contains no people? against it is, therefore, it that does not just presumption proof; exist. is present argued grant grant monopoly,

Again, to exclusive therefore be construed and of privileges; mode of narrow sixth article bill of most interpretation. has been to of Massachusetts supposed support objection; nor or man, men, “No association corporation, or to obtain dis particular title exclusive advantages privileges those of the what from than arises the consi community, from tinct of services rendered and this title to deration public; being children, nor or neither transmissive descend hereditary nature blood, the idea of a man law ants, or relations born a magistrate, Now, is absurd and unnatural.” it is that plain, or giver, judge, it is not an inhibition of all whole clause together; legisla taking exclusive but a reasons privileges; promulgation tive grants or be no hereditary magistrates, there should legislators, judges. why admits, exclusive by necessary implication, grant But it services, without of what nature ascertaining privileges It be. be sufficient co that might say, services those court, of an in the state admitted exclu grant learned judges take toll at or a is not a ferry, turnpike, sive right .which, law; nor one of the is deemed odious particular monopoly those distinct from privileges, community, and exclusive of. bill All asserted are reprobated rights. was, a liberal interpretation grant, opposed the judges, R. 116, 132, Pick. See 7 monopolies. it tended promote 137; has been old act 1641 colonial monopolies, against Again; That in af statute is merely the same fortify on to argument. relied statute monopolies, principles English against firmance if it 3; force, not) I. ch. were now (which James construction. the same it would require when, it is once arid virtue in There particular phrases; great TERM, is of of a that a the nature tendency monopoly, suggested, itself con mind every almost instantaneously reject prepares it down the narrowest limits. struction which does not'pare is an former times honest up prejudice, grew America, to which, there abuses gross royal prerogatives; a But, are no what is as under authorities. monopoly, 'analogous few, stood in is an a some law? It of exclusive right granted which before of common a Thus, was thing right. privilege granted or the sole king buying, selling, making, working, using a from in is restrained whereby thing, subject, general, had, of or which is a before he mono liberty manufacturing trading, 4 159; Black. Comm. F. 4. poly; Bac. Abridg. Prerogative, 181; lord in his My Coke, Crown; Pleas of the 3 Inst. has given definition of a and very was definition monopoly; approved Holt chief (afterwards of Treby, justices king’s bench,) counsel, as of case arguendo, East India v. great Company Howell, State Trials, 386. His Sandys; are, words that a mono “is an poly institution his king, commission, or grant, otherwise, to or of or any persons for the sole corporations, buying, or of selling, working making, every using wraereby any thing, per sons or to be restrained of corporations freedom sought or any or in had-before, hindered their liberty-they lawful trade.” So, that it is of not the case a if the had not the monopoly, com subjects mon or the act, before to do liberty right possess enjoy or franchise as a common privilege Howell, granted, State right; Trials, it 425. And deserves remark, that this especial doctrine was an admitted concession, the entire of pervading arguments counsel who as well" as of those opposed, who maintained the grant trade in exclusive case East India Company v. St. Tr. (10 How. a which Sandys, constitutes, case 386,) a great measure, basis this branch law.

No Iwill, sound assert that the of a lawyer presume, grant to .erect a a over stream, is a a common navigable grant Before such had all the citizens of the state a right. grant, erect over streams? not; had bridges navigable and, Certainly therefore, the was .no restriction common grant It any right. neither a nor, in sense, had it monopoly; legal any tendency It took from no what he monopoly. befdre; citizen possessed had no to take it took, indeed, from him. tendency the le- same gislature identical fran- granting privilege SUPREME COURT. 608. Bridge et Aiver v. .Warren But this it no more

chise to monopoly, persons. made of a or funds state for valuable than public-stock grant called, so if consideration. Even cases strictly monopolies, be such that is for the nature grant good,-as inventions, the rule has been always cases of patents giVe as them a construction Lord favourable support patent, pereat; said, Chief Justice ut res valeat quam Boulton Eyre magis H. Bull, 2 Bl. has been But pressed "argument argued, this na form could every ingenuity suggest, grants of as ture are to be construed exclusive liberally, conferring barrier it will an effectual gené grantees, interpose against I not to feel For ral country. myself, profess improvements in its either general cogency argument; application franchises, or in its grant. special application present at dif different minds arrive well This is subject tipon Men conclusions, may, both ferent principle. policy sort, of this will, differ topics according complexionally For own my habits of speculation opinion. natural acquired of surer. to improve I plan conceive arrest public can part, and than to make the ments, founded on enterprise, private capital both to uncertain, and of that questionable security, capital outlay man will hazard his No and as to .in capital any productiveness. loss, if be a it must be which, there borne exclusively enterprise, he the success, there be has not himself; security slightest of If. that success for a moment. the the rewards' single of enjoying its citizens to tq means invite enlarge public-com government ..the canals, or or conveniences, to establish turnpikes, forts and bridges, will railroads, must be .some property there pledge, with the will be co-extensive safe; that the grant: enjoyment to of a combination not be the over success will that signal general ' The to its away profits. very’agitation throw its take rights, stockholder" in sort, is to alarm every sufficient question the whole' sort, of this country. every public enterprise throughout has found it .state, the necessary Already, my legislature native the here contended to concede exclusive against; expressly privilege the road benefit order to insure the of a rail for. accomplishment . such exclusive And we are that all yet, grants public tqld, of. to detriment are public. were, in a itself if there foundation for argument

But TERM, Bridge v. al.] . to fail in its yiew, totally application present it would general exclusive, is but for a short however Here, grant, case. of which have more than two-thirds elapsed; already limited period, whole and franchise are to revert and, when property it gone, wholesome exercised a state. foresight legislature ,a it will unre- reasonable have an within period the subject; choose, to do whatever it in'the stricted authority appropria- not, then, tolls. and its There is under fair tion of the bridge to that im- reason presume public aspect slightest will, be retarded can, either liberal injuriously provements construction grant. present I answer, thus to think

I endeavoured I success all the indeed (which answered run arguments; into eacli fully to a strict construction adduced justify present other) charter. it is not further, I a case only, for strict maintain go construction;- but charter its face, very upon terms, its demands from Court, and for professed undenia objects, law, construction for a favourable ble principles grantees. declared, the first place, erecting be of and this will- public utility; great exposition of its own the Court for give motives liberal grant, requires interpreta and not to- tion, destroy in order promote, enterprise great t9 In the next is a place, contract for a valu utility. consideration, and a full and adequate able consideration. The pro sum of out a (and are lay large money, those times prietors outlay capital,) large erecting very are bridge; they the whole it in repair during period forty keep years;, are at the end of that surrender in-good repair period the state,, as its’own pay, whole property; during period, an two hundred Harvard pounds annuity college; they are burthens, -and heavy to incur expenses the public accom In return' for all these modation. they are charges, entitled to no than 9f the tolls more receipt forty during years, and reimbursement capital, With expenses. interest all this they take chances of success; are-to and upon themselves if the enter loss is their own. fails, the Nor exclusively let prise any man there not, that was at the time when this charter imaging, was much solid success. ground order to doubting en granted, view of we must back to that subject, just go. period tertain.a bankruptcy, difficulty. distress general constitution of n Vox.. XI. —4 H filo SUPREME COURT. v.,Warren

the United States was not but it existence, then was not only not of. then even dreamed The union of the states was into crumbling ruins, under the old confederation. manufactures and Agriculture, commerce, were at their lowest ebb. There was infinite danger . all the states local interests and and from appa from jealousies, rent of a much of a adherence to that shadow impossibility longer the continental And four after even government, years congress. wards, when had evil war every civil greatly aggravated, added to calamities, was other States constitution of the United all but was conventions. shipwrecked the state passing through . It was adopted by very slender These are historical majorities facts admitted required them effect, colouring give no concealment to seduce men into of future schemes aggrandize I ment. would man, even now it to the common sense put every whether, if the constitution the United had' not been States the charter would adopted, have been worth forty purchase years’ of the tolls. all.

This It is well known, was the historically, first ever very constructed in New bridge over England, navigable so near the sea. tide waters of our climate, thé rigours dangers sudden thaws and and the freezing, obstructions from ice current, were deemed many rapid persons insuperable to the obstacles success such a believed, was- project. would á I stand severe scarcely winter. And single myself know, am old that in sea, at enough regard arms much later the same doubts have had a periods, strong depressing influence If enterprises. Charles had upon public River Bridge been carried the first or away erection, second season during after far from certain, it is to this being up moment another bridge, such an arm of ‘sea, would -ever been erected Massachusetts. I state these which are of things public notoriety, the notion that the repel was into an in- surprised that, cautious grant, more than to the reward adequate There awas full and perils. consideration, in a adequate pecuniary sense, the charter. But,' in sense, a more the-erection of general as a matter of accommodation, has been incalculably disre-, beneficial pdblic.. Unless, therefore, we are wholly the declarations of the and-the gard charter, legislature, objects historical facts times; in mere indulge private speculations and loss profit our present experience; lights TERM, 1837. 611 Bridge et Bridge River v. Warren [Charles al.J me, that the Court is bound to come it seems interpretation charier, furtherance, of this with a that it was persuasion granted and not of the public derogation good.

IBut do not insist extraordinary liberality interpret- upon any All I shall a fair and charter. contend for is that it receive ing so as into reasonable effect interpretation; carry legislative intention, and for their secure to the’ security privi- grantees just I indeed, well have might, myself any leges. spared investigation are ordi- principles royal upon legislative grants construed; to be furnished an une- for this .Court has itself narily rule for contracts. quivocal interpreting present grant is Lessee v. confessedly contract; Huidekooper’s Douglas, this Court Cranch, C., R. S. 1 Peters’ Cond. R. said: (3 1; 446,) “This a state is a contract, and although party, ought to those well construed established principles regu- according is, late that as in cases mere contracts precisely between generally;” the nature and into consideration objéets private persons, taking A was this Court in the case of like rule adopted grant. a. United States; Cranch, the United States contract v. Gurney, R. 132. And the sense and C., S. 2 Peters’ Condensed good 333; irresistible. the rule seem equally justice the consideration of the us now enter terms the char Let can be more than that it is my nothing plain ter. judgment, to erect a between of a Boston and Charlestown, bridge between those towns where the was It has in the ferry kept. place itself charter does not describe the been said as be bridge Boston; but Charlestown erect “a authority tween grants river, Charles in the where the old was then ferry over place bridge named, towns are not for the these except purpose kept;” the then seems Now, me, all due ferry. of describing deference, to be a distinction without a difference. The is to bridge in the where the old’ then was. But be erected where ferry place ? Boston and it to where was it to terminate was Charles- begin, termini, for the were there; town are only possible ferry ways Charlestown, and it was to be built between Boston and because the them. to the true between sense ferry Surely, according occur, where words it is a (for alone preamble, descriptive great refers, where clause suppose, except mistake enacting it is immate wholly the location by implication, bridge,) rial, clause, whether we read the erecting “whereas bridge SUPREME COURT. v.. Charles river where the Boston and between place over ferry now Charlestown is “whereas the of a over kept;” erecting bridge Charlestown Boston, Charles river where the ferry between In each case the now to be Boston between kept.” Charlestown; and the termini are the the The title of ferry ways. for it is “an beyond act act for controversy; puts incorpora certain for the of a Charles persons over purpose ting building bridge Boston Charlestown, between and told But, river &c.” then, we title, rule in is that no better the settled, than that construing statutes does not constitute of an act of more any the act. If this no part than that -title meant, of an act constitutes no of its enact part .the the of clauses, the accuracy not be position will But ing disputed. meant to title of the for say if it is act does not to it belong or is explanation construction, of and that in no sense any purpose act; I, one,'must of the for there is any part deny, any law. of the I On settled understand that the contrary, principle it is not act, an resorted title of (though ordinarily to,) may legiti for the of resorted purpose the in mately ascertaining legislative as much as other of the tention, any part act. In fact just point to, whenever resorted may assist us in usually it is any removing Thus, the clauses. in the of Sut case enacting ambiguities great Co. R. 23, 24, the title of an (10 act of b.) Hospital, ton’s parliament to bé not examined-in the unworthy thought was construing design Bull, In Boulton Hen. Bl. (2 act the effect 500,) the the . act was insisted in the of an largely upon argument, as title furnish the intent of the clauses. And Lord Chief Jus key enacting a. ing the admitted tice and met it Eyre propriety argument, that, case, would, in that he the necessary, word saying, expound “ in the of- the bill in the body title to opposition it, to engine,” .to “method” in order to a the In the mean case of support patent. the Cranch, R. Fisher, 358; C., S. States v. (2 Peters’ Con. R. United Court of United States Supreme 421,) expressly recognised doctrine, and it a practical that case gave application. Justice, Chief of the Court, after delivering opinion adverting bar, at the argument influence respecting degree an act title-of clauses, construing enacting ought'to ‘‘Where mind labours to said: discover design legis it seizes lature, from aid be derived; can and in every-thing the title such a case claims a notice, will its due degree share consideration.” TERM, 1837. C13 Bridge et Bridge v. Warren of the charter, of the terms views my grant,

According over Charles river, the franchise be- bridge then, erecting or Boston, and of tolls taking pontage Charlestown tween limited to those therefore, towns; and does is, passengers. from any over grant right exclude the legislature bridge Boston; as, towns and between example, same river Roxbury Boston, Boston, Cambridge between Chelsea Boston. true construction of my judgment, although, But terminorum, ex vi charter, not, my does opinion limits it. this to be rest Taking important degree, grant river, Charles build a where over old place bridge ferry Boston then (as between Charlestown contended kept, has, still it as all such must have, defendants;) grants fixed the same meets us: is the locality, question confined to the to erect a mere to také spot, toll of' proper it, who over without pass passengers, any exclusive fran- ljmits side local chise on either Or does bridge? it,' include exclusive franchise on each implication, side an ex- shall tent, which shut out any injurious competition? other the words, does still leave the at .legislature to grant liberty erect free or side, on either with tolls, even in bridges juxta-position and of this with the timbers -Or is planks bridge? an there implied of on the the to abstain from all part legislature, acts obligation or sort, which shall valué impair destroy this The grant? that the contend, defendants exclusive plaintiffs extends than the of the further timbers planks- bridge; is at full new liberty grant any bridge, near; however take although may away even portion, large whole of which would otherwise over the the travel of the pass bridge plain- to this extent the defendants tiffs. must for contend; And their to all is, intents and in a bridge purposes, practical legal sense, to that of the plaintiffs. contiguous of the is,

The defendants are to argument plaintiffs take Either by implication. exclusive nothing (say they) ex grant tends to the local limits or it only extends the bridge; whole at river, least to old length up Cambridge bridge. latter would be monstrous; construction absurd and and therefore the former must the true one. I Now, utterly deny alterna tives involved dilemma. to build bridge over COURT. SUPREME v.'Warren be franchise toll, to take include exclusive river, and well limits of not extend through the local bridge; yet yond on of the distance river, or even considerable course whole law, or in sense, There is no common difficulty the river. can then, asked, But it is what limits such'a doctrine. maintaining ? The answer is obvious; such a franchise be assigned franchise to a distance with it an exclusive reasonable carries be diverted to the shall not river; so that the travel ordinary newA or ruin of the franchise. new bridge injury by any nuisance, with be a to the old would be Which would bridge, so of its not be reach exclusive would right. question distance, as it would be as to the fact of nui to the fact much in such There is new- incorporeal expositions nothing sance. foundation, new in this thus nothing administering, upon rights; thereto. The with common doctrine coeval regard remedies ancient an action is brought shutting up itself. Suppose law for water-course; or or for to a diverting messuage; belonging lights a nuisance near a stream; back a or for dwelling erecting for flowing distance; in cases is not a of mere house; question question real, but of and substantial inches, permanent, feet and injury; mere But,of all the circumstances of the case. be decided injury hereafter. I shall speak again contended construction see what result Let us narrow If that be such as is inconsistent defendants. result for by case; if out of the it be presumptions growing repug- reasonable all if it will defeat the whole equal justice; principles nant on, I insisted not, trust, it will grant; objects it. is bound adopt Court had occasion to take notice that the charter before original

I have that the whole one forty years; compensation a limited their outlay Harvard' capital, annuity proprietors is to arise their other Put annual burthens charges, college No other them fund allowed period. provided the tolls during and are to take it to all indemnity; perils their subject foij The mo- the chances of an remuneration. failure and inadequate of was were bound to the charter accepted, ment proprietors of this Whether the contract, their part. bargain obligations bad, to be or of turn out unproductive should good productive was ndt a mere did not duties. The vary jus their franchise profit, of of From its the moment the erection acceptance, privatum. TERM, 1837. Bridge Warren al.]. publicum. govern- became jus the bridge, charged'with should be to kept perfect insist that had bridge ment that the should bridge travel by proprietors: repair for the be raised without that the draw should expense, pur- lighted: And if the had refused proprietors neglected poses návigation. lia- would have been of these to do their any duty respects, It no or defence could be ble to public prosecution. apology that the the tolls were inadequate; bridge unprofitable; Or that was a were the whole concern ruinous expensive; repairs onere, took the charter and must cum proprietors enterprise. this, It is no to all abide choice. answer say their charter, surrender and thus from the might escape proprietors could burthen. have make such surrender. They would pleasure whether it depend upon good government, such a surrender, or not: would and' until accept such an ac- the burthens would be to the last ceptance, hour of the obligatory And when that hour shall arrived, .charter. have itself, in is to to the delivered state. repair, good I Now, common man, put sense every whether if at pharter moment had granting said to shall build shall bear you you bridge; proprietors; burthens; be bound shall your sole charges; you reimbursement be from the tolls forty shall we will years: yet not even tolls. On you certainty receiving guaranty contrary full reserve to ourselves the we authority erect other or free to our own free will according bridges, bridges, toll the same yours, having termini pleasure, contiguous and if are successful we thus you yours; supplant you, divide, tolls, annihilate without destroy your profits, your annihilating if, I burthens: had such been the say, your language legisla ture, there a man discretion or ordinary living-of prudancé, who such a charter such accepted terms? I would fearlessly no. answer, There would have been such a gross inadequacy consideration, and such a total of all the insecurity property, under circumstances, that would project still dropped, I farther, And burn. whether put question any legislature, meaning promote project permanent public utility, (such as would was) dreamed of confessedly ever have such a quali fication own when it enlist grant; private sought capital private insure of it? patronage accomplishment SUPREME COURT. Bridge River v. Bridge Warren et [Charles al.]. form is the and of the Yet, very pressure It present case. is not case. Warren has extravagant been erected, an imaginary Bridge reserved authority, such supposed under immediate neigh- Charles River same bourhood to ac- Bridge; termini, .with line of travel. a half the same For dozen years commodate was to benefit of the toll for the to bridge proprietors, reimburse them At the end of that for their period, is to be- expenditures. bridge state, and of toll; free unless the property come legislature one. fact, hereafter it has impose point become, should since is, under the sanction act of now. incorporation, without acts, free payment tolls for subsequent any that, truth, So here is now a free owned persons. bridge, by under the authority commonwealth, erected which neces- all tlie tolls Charles River away takes while its sarily Bridge; to twenty run. And years charter the act of yet prolonged Warren is said to be no establishing Bridge, violation of legislature to the Charles River The franchise granted Bridge. legislature annihilate, has annihilated its own acts all nay by chance of tolls, travel; whole it is withdrawing admit- though receiving take barren away it cannot tolls, ted gather any when there no travel to occur, dollar. bring should According course would same have a argument, legislature the! perfect avenue and to up every block obstruct every right fo. it, should lead to without violation of any the char- highway River of Charles and at the same time it Bridge; tered might to be burthen punctiliously every discharged propri- require I period seventy prolonged years. confess, that etors, during such is so propositions statement mind, very startling my with all faith, notions of my irreconcilable and of good so any I legislative should interpretation always fair intentions'^ which should soundness conduct reasoning me to doubt results. such that there no charter, it is said covenant prohibitory

But be made of prohibition. implications are to stand the letter of their contract, and the proprietors de non existentibus, ct non eadem est apparentibus applies, maxim d it is conceded, that cannot revoke An yet legislature lex. I not, is no Why know? There pray nega grant. resume charter; be" there is no to- express covenant prohibition tive arises, reason natu- plain. prohibition there. found TERM, 1837. if not ral, would necessary implication. first against reserved justice presume principles own That was. the doctrine in destroy grant. Fletcher v. 87, Peck, this Court: in other cases 6-Cranch turning upon of the same and constitutional great principle political duty the Can to do that legislature power which right. indirectly, do If it take it cannot cannot directly? or resume the away, fran- itself, it take its whole away chise can substance and If value? the an that the will create law shall implication not legislature, resume is it not as natural its own equally grant, nécessary impli- cation, do shall not act that the to legislature directly prejudice or to its If there no value? were destroy grant, authority own. doctrine,'! so reasonable would qf in favour the say, of language Mr. Chief Parker, late lamented Justice in this the case: very .“I the of it on our principles constitution, government ground the on immutable of to principles bind ought justice: go- vernments,- as well as people.” remember, is most to that in the

itBut important construction of law common' must be taken the into grants, all considera legislative must be ; for the presumed view tion gene are construction which the common recognised by ral principles established, is better Now, principle law. than principle or law is when a given' thing granted, giveth, impliedly, the same. This necessary taking enjoying whatever a; is, indeed, 56, Litt. down Co. dictate of laid com Is not the sense unobstructed grants. mon applicable posses full tolls, to the indispensable enjoyment corporate sion to the of Charles River If proprietors Bridge? granted rights withdrawn, or were directly indirectly, authority tolls not franchise worthless? A burthen, would utterly legislature, Would not the not a benefit? reservation the le authority did not create rival de impair, .to absolutely gislature of Charles River the exclusive stroy proprietors Bridge? other than an it-utterly affirmative impossible give any I conceive How, then, are we to these questions. to' each answer escape conclusion, would impair destroy law, from the nature of implication prohibited grant, “ satisfied,” Parsons, Chief in de We said Mr. Justice grant? in Wales v. Mass. Stetson, court R. opinion livering “ 146, 143, in any corporation vested cannot legally Vol. XL —4.1 SUPREME COURT. River v. Warren statute,

be controlled unless destroyed by any subsequent for that be reserved in the-act of purpbse legislature, incorpo Where is such reservation to be found in the ration.” charter of Charles Bridge? (than brother whom few ever

My Washington, judges possessed sounder or clearer in his able in the judgment, learning;) opinion Woodward, 4 of Dartmouth Wheat. R. College case took this true sense of the Blackstone’s same view Commen- passage uses the taries; and following strong language subject “ Certain are created charter the.government. obligations it) (by and the On former, on grantees. part both grantor to an extinguishment to bestow king’s prerogative amounts identical franchise another same because it corporate body, .the therefore, his former grant. a contract implies, prejudice would another, reassert franchise to or to im- not I know how more it.” could be language apposite applied pair None of us then doubted its correctness, entire the present'case. it; and I am not able uttered he how the perceive when legal be now The case of The escaped. can inference Chesapeake v. Baltimore and Ohio Rail Road Com- Company Ohio Canal 1, 6, Johnson’s R. 4, 143, 146, 149, Gill sustains fully pany, doctrine; and most nature, same elaborately expounds and extent. operation, not left to mere we are general

But reasoning.on subject. of the crown in cases which a-like are construction grants There which are as conclusive subject point has prevailed, can be. How stands the law in any relation authority, grants fairs, markets, and ferries? I speak crown grants, sort themselves into a of this resolve grants; prescription ail claims of, and an ancient evidence presupposing grant, merely being traced, the constant use and except possession no longer can a.fair, a-market, If the or or a king grants ferry, franchise. existence the local limits where it is beyond franchise has ' no more than a to set such up Does import grant erected? full and au market,- or in the crown ferry, or fair, leaving nature, other make same grants thority juxtaposition limits? No I will local venture ever say, those doctrine; law it and the--common (as such repudiates maintained in the most terms. shown,) will be express presently establish, that the cannot king authorities abundant- TERM, 1837. v. Warren. second which shall profits make any prejudice grant And not? Because former imposes why grant grant. him to burdens on the public charges, grantee, subjects crown remuneration; means of constitute his profits only much to destroy-the shall not at less liberty directly impair, this reason of its In confirmation of whole value objects grant. that when books, laid down in the it has been repeatedly ing, all such it is to insert in fair, market, or or usual ferry, king grants of any it not be to the a clause or shall prejudice grants proviso market, or nature; fair, as a or other franchise of the samé existing inserted, if or is.not But such a clause grant ferry. proviso bewill restriction; with the like for such a clause construed always new And, therefore, law. if such is without implied grant clause, it occasion either to -the subject any damage king, Coke laid it will be So Lord revocable. thing, my down 406. law in 2 Inst. laid down the Same judges Butler, 222;) house of lords in the case of The Leo. (3 v. King was the case of a of a market to the pre new supposed grant deserves of an old market. Their on that occasion judice language “ was, has an undoubted to be cited. king repeal deceived, he is or his and that wherein patent subjects prejudiced, afterwards, And a writ scire facias.” to cases where referring “ issued, there, damnum had been added, of ad the king quod damnum; damnum', is not ad notice, that it takes if be yet, ad for in all such void; the- condition is patents implied, patent damnum of it be not ad merchants.” viz., that neighbouring “ this is And added the scire (in positively alleged, farther; est ad damnum et that concessio predicta facias,) dfepauperationem cause to were a sufficient revoke the if there &c.; which is patent, The same doctrine is laid down Mr. nothing Sergeant more.” note to the case of Yard R. Ford; William’s learned 2 Saund. (2) Now, market, if in the such franchise of a fair, there is no or condition or implied ferry, obligation king’ not make to the will subsequent such grant prejudice prior or it is inconceivable such a impairing rights, why grant, proviso -But, if, the law (as should be implied. certainly is,) can king o,f his make no former then subsequent grant prejudice grant, is clear; the reason such for the will not implication be king pre sumed to intend to his but violate rather to be duty, deceived in his second if of the first. grant, prejudice SUPREME COTTRT. ah]

It is and this we can that ground, only, explain ground the established doctrine in relation to the crown ferries. When grants from ferry A. to B. without it to words which import using an exclusive it, that by will be ferry, why (as shown) presently the common law the all other is construed to be exclusive grant ferries between ferries the same termini; least, or at places, are so near are tend to the first injurious ferry, direct from diminution of its ? it must be because Plainly, receipts the nature of value, such a unless franchise it can have permanent it is exclusive; the existence circumstance that during grant, him, burdens raises grantee public imposed upon implication that it, while shall be done to the nothing prejudice is a indeed, franchise. do, The .words of the subsisting import grant se per confer a But merely A. and B. between ferry common law in, and, ut res steps valeat expands pereat, magis quam the terms into an exclusive nature, right; very objects, and motives, of the grant.

I this 'is the Let say theory common law on this subject. us now see if it is not borne out in relation authorities fully to ferries; franchise, so near to that of a which.approaches that human has not as able state ingenuity yet any assignable them; difference between that one includes except pon see Webb’s 8 Co. tage, passage ferriage; the.other 46, is, R. duties, each includes (b); burdens, and an for these duties and burdens indemnity receive tolls. by right A limits; of a must it must local have some ferry, always termini; and must be between some fixed vills, or points, places. But is the franchise of a to the mere ferry limited ferry ways? mistaken, Unless I am there is an unbroken series of authori greatly doctrine; ties a doctrine fixed in contrary firmly establishing our law, common to America ancestors as a brought part as a their inheritance. The casé of a case of clear ferry put “ Just, . Paston, as in 22 Hen. V. b If, law by says long ago he, I a market or a fair on a and another have sets day, particular up yille, a market or fair on the in a which is near mar day same my market, I ket, so that fair is shall have my my impaired, against nuisance, him an assize of or an action on the case.” And the same “ is, If I -in ville, law an ancient and another sets ferry up another near to so same river ferry upon my ferry, pro I case fits of shall on the action my ferry impaired, TERM, 621 1837. v..Warren al.] [Charles Newton, it seems was counsel fot the (who him.” And against so; law to' be as a defendant case) gave in.that admitted “ and to are bound to serve and reason, ferry, .support' you and otherwise shall it for you the ease common people, repair is before the at his. amerced; sheriff enquirable it grievously tourn, As to the and also before the case of a Eyré.” justices a market fair, said, market or Newton or king’s grant a that it should not be fair, there is nuisance always proviso “ Just, Paston, or another market fair. To replied; sup a márket without if me one sets pose any proviso, king grants market, is- after that another a nuisance to I shall that, time up him of nuisance.” against assize law; The doctrine here laid down seems and it was indisputable cited -and Lord Field, 2 Huzzy approved Abinger Cromp. v. Mees, and Roscoe, 432; to which reference will be made. presently “ 1, In Bacon’s F. it laid down, that- Abridgment, Prerogative, fair, market, creates or a to a and after- king person, grants wards another another to the to' grants person prejudice first, Viner’s void;” second see Nuisance, 16 Abridg. G. pl. 2. law is laid down in Black. Comm. 218, same 219. “If market, I am' entitled to fair (says he) another hold person- sets that it market, a fair or so near mine does me a up prejudice, nuisance, is a freehold which I-have my market or-fair.” adds; river, He “if a is erected on'a another ferry ancient so.néar custom, is a as to draw nuisance to the ferry away old one; where there is owner is bound' ferry by prescription, al it in and readiness for the ease of ways keep repair the king’s amerced; he otherwise be, b.e grievously would subjects, hard if "a therefore, new were suffered extremely ferry to share the which does not also share the burden.” -The same profits, doctrine is-to -in- (Action be found Comyn’s case for Digest a Nui authorities; sance, and in see Yard v. A.) many Ford, 2 Saund. 184; R. Fitz. note N. Brev. Hale de (2); Port. Maris, ch. Tracts, Law 5; 59; Com. B. Id; Harg. p. Dig. Piscary, Market C. 2, 3; C. 2 Black. Comm. is in doctrine as true now, and England just just strictly

enforced, as it was three centuries In Blissett Hart, (Wiles’ ago. R. 508) recovered for a plaintiff violation of damages his right to an defendant ferry ancient who had set against aup neigh “ to his ferry said; nuisance. The court A bouring ferry publici SUPREME COURT. River Bridge v. Warren Bridge et It is franchise, that no one can erect juris. without a license from crpwn; erected, and- when one is another cannot- be erected without an ad If damnum. quod second is erected without a license, the crown aby warranto; remedy quo the former has a action.” remedy grantee of 4 Frank, case v. Tripp Term. R. 666, the admission doctrine; of as proceeds upon the same does Lewis, Prince 5 v. Barn. & Cress. 363; 6 Kendall, Peter v. 703; Barn. & Cress. Chadwick, v. Mosley Barn. & Cress. note a; and Walker, & v. 7 Barn. Cress. Mosley 40.

There is a recent very case, alluded which de (already to) cided of the court consideration, the fullest exchequer, upon in which the authorities leading were discussed with upon point acuteness and I Field, mean the v. great ability. case of Huzzy 1835; 239; 13 Law Journ. S. 2C. & Meeson Rosc. Cromp. Lord, the of the on that occa- Abinger, court delivering opinion sion, used the So far the authorities following language: appear “ clear, that if a new be ferry license, without the put up king’s an one, of old an lie; the action will there prejudice which of of has to the appearance being contrary, except Frank, hereafter mentioned. authorities These old pro Tripp, first, that franchise is ceed upon grant good ground, a sufficient who as law, for to the he consideration being subject, benefit, of the crown a corres received have by grant him return the benefit imposed upon obligation ponding' in. another, without inter received; secondly, authority legal his franchise exercise rupts grantee withdrawing had, which he would otherwise have and which profits passengers, of his in manner from at the he has cor purchased public price 'the disturber is action to an liability; responding subject case is And the in this to the respect injury. analogous market, which also a of a or nature fair privilege monopoly. then, is a of a public ferry, highway special A public description; must be in where the termini places public rights, or to towns or vills) vill’s. The towns, highways leading right one case an exclusive is in town carrying grantee other of from one to the other, in the town; all, carrying point to. use the town nearest ville to highway who going leads on the othef side. new there Any ferry, highway the effect of must be fore, taking away passengers, instance, if one should a new construct any For landing injurious. TERM,'1837. v. Warren one at a terminus short make a place ferry, distance over from other terminus, proclamation carrying passengers at that then them from which to the place, they pass landing established, which the same before it ferry upon highway, vill, reaches town or which the by, passengers- go immediately vills, leads; first all which that there could highway doubt but such act would be an-infringement so intended person to defraud the ferry, acting whether If or not. such new be nearer, or the grantee ferry, ferry commodious, less; used or the obvious, boat more fare it is that all - the custom must be withdrawn from the old inevitably ferry. And, would be of all the thus, benefit deprived grantee franchise, liable whilst he continued the burdens imposed him.” more case could presenr

Language apposite scarcely have And, is, been used. what makes it still stronger, case very of a new before court was on one side ferry from the- starting at town, town, same but not the same to a terminus place of the other side different from that the old house, and ferry more half a it, than a a mile from thence by highway communicated with which was connected with old at a ferry, mile highway . Now, if the of ferry from the distance old did right not, ferry extend on either side by implication, beyond termini, local its as to arisen disturbance. could have Trotter question v. .the Harris, R. Jerv. similar upon Younge proceeded principles; an it not for so exact of did call them. exposition though It is of observable, that in the case Field Huzzy defendant did not claim under license or crown; from the grant and there it it fore be that does not may to a supposed apply case -argument, of the new where that is a from the crown. ferry But grant of there no difference law between the cases In point each case . as the new must be treated a clear disturbance ferry rights not either- the old or it is case; first' ferry, does for grant an not, by .exclusive above and carry below implication, termini, local then there can be no either for pretence, of the old tó of the for ferry new it grantee does complain ferry; not If his under his does, violate first rights grant. grant by and below its exclusive above local ter implication, carry mini, as so far or disturbed maybe a new by prejudiced ferry, then it is clear, established that upon principles, equally king COURT. SUPREME aB]. Bridge v. cannot, a new his former for the de grant; law grant prejudice It is him. true that where the new prives prerogative. crown, without a license from the be abated ferry got up nuisance; warranto, a a or information, as the crown. upon quo will on .not confer action of the old Eut any right grantee .the unless his own have been disturbed. ferry, said that this of established' I have is the result principles; Market, before case recently Eng Islington the-judges submitted to them the house of certain land questions upon lords, of the most solemn and conclusive nature is an authority What it still more of franchise. identical gives impor point is, the- three last by- that in questions proposed tance judges to- of' the lords, very the house point king of-a market to his former second make a grant prejudice law, arose, -common limits of the was point within grant, said, On that occasion the answered negative. judges edly a-market remains eVen the while the first unrepealed, franchise, in not accord providing, default grantee accommodations cannot .the public, ope to his proper duty, ing a new to ano ás charter law, rate, granting ground in point be law, the common which shall within really a market to hold ther to,the after market. existing judges, adverting injurious damnum, a writ of ad in cases quod issuing course .the usual “ for, is asked added: We do not market say, newa whe.re crown damnum But if the absolutely necessary. of ad writ qtiod damnum, charter new without a writ of ad "and quod were to grant wqre interests of other persons it should appear, prejudiced, deceived, to-be supposed the gr.ant might crown would cited, And facias.” scire approbation, repealed “ in 2 Inst. If a mar Coke, 406, that one held of Lord the doctrine obtains letters another patent, ket either by prescription market, former till tárry of. the he shall' the nuisance market to course of by latter letters of the patent avoided he market thus assize nuisance:” the.' an establishing he law, that may law, in whether first difference point that there is .doctrine; market be; whether new or by grant; by prescription market .In each' the re the crown a case or without patent if the new mar first market for the owner same is the medy ket,is held, the circum also- to him. nuisance judges a TERM,

JANUARY' v. Warren Bridgé stance of the benefit of the a new public requiring, market would not, of itself, warrant the of the new market. Mr, Dane, in his Dane’s (2 ch. 67, Abridgment, Abridg. p. 683,) down the in doctrine terms broad and lays equally comprehensive, as to America. After of a as applicable spoken having ferry imposing burdens, adds; he “in this a publici way ferry becomes juris, pro hereditament; the owners of perty; incorporeal which, for the law convenience public certain being obliged perform services, must, as a reasonable equivalent, in this protected pro And he the case of cites Chadwick v. perty.” Proprietors Haverhill directly erection of point; Bridge, under the of the authority is a nui neighbouring sance to a bestowed on ferry. Notwithstanding commentary I am of case from its escape pressure, opinion legal could have been referfees never accepted court, report if the declaration thereon, had stated a given judgment right: which in such a of law was capable point supporting judgment. Dane’s statement of the seems, The court from Mr. clearly the title of the he should himself plaintiff, prove recognised .have Besides, without owner of ferry. disparagement man, himself, Mr. chairman (the Dane from his referees,) is well entitled with the ability, speak great authority learning of a character such a commentator highest subject. of Churchman true, Tunstal,

It is that there is the case v. (Hard. doctrine, as to a R. was laid where different down. ferry, 162,) cases, former as well as But that case is to all later cases; repugnant Macdonald, Baron General Richard, Lord Ch. v. Attorney (2 afterwards informs us, Anst. R. that it was overturned. Lord 603,) 239; C., Jour. S. Field, Law (13 Huzzy Abinger Mees, Cromp. farther, Roscoe, us, and informs thaf after 432,) goes dismissed; was a bill bill in that farmer of (which case crown, for an seem, it should under to re ferry,'as injunction on both sides of the had lands defendant, Thames, strain the who in the habit and who was off, of á mile three-quarters ferrying bill was do another across, so;) from continuing brought passengers made lord after a decree Hale in la- restoration, should be down. put vour that the new ferry This plaintiff, last determination is implication carrying exceedingly strong, regard ferry, of all other as exclusive ferries to the franchise of a

Voí. XI.—4 K SUPREME COURT. 626 Bridge v. et Bridge River Warren [diaries al.J it, extent; and it was very made one enlárgcd by injurious who ever adorned the bench. tiie judges English greatest has been the doctrine as to But it ferries confined suggested does not t.o ancient"ferries to those by prescription, where apply be In shown. the former may there is cáse the ex grant, use, by exclusive use. In may clusive proved long of the show whether it is latter, terms or not; exclusive grant not stated to be exclusive in the cannot grant, by implica Now, there is no be exclusive. shown presumed authority tion distinction; and it is not sound in itself. If a such a exists ferry more, from the nature of the can be nothing prescription, thing by than tfiat the by ferry some- possession, established long originated limits, has local from the and that it on one side to ferry ways grant, the other side. mere absence other near- those ferry that there is no for until there competition; except nothing, -proves interference, the erection of another there can be ferry, some below established ways exclusive above ferry nothing If such an should occur, of the interference then use ferry. mere could establish arise; and use no more long question-might tf of the franchise. whe question; possession than rightful or not must nature of upon franchise exclusive depend law, and the at the common implications a franchise belonging exclusive, short, is in the authorities taken unless it. be. facts, as it arises from the did in Holcroft a contrary presumption Coke, lord (in 1 Pull. 2 Inst. Heel, 406,) But v. Bos. to all cases of down law equally applicable prescription lays market either “If, he, one hath a says by prescription grant. and another obtains a market to the of the letters patent king, or by market, he till o'f former shall hot he have avoid tarry nuisance market, law; latter course of but he ed the letters patent must, an of nuisance.” The same rule for the assize same reason, Lewis, to fairs and ferries. The case of Prince v. apply market, Cresw. was the case of of a not of B. and the grant ,a market one distinction on by prescription; yet suggested Pull. Heel, account. Holcroft v. Bos. and case (1 400,) aof market letters of a patent. grant Gibbons, v. Ch. R. Mr. Chancellor (4 John Kent 150,). In Ogden most manner, ample principles recognises, general law. of an exclusive right common case Speaking Point, York to steamboats Elizabethtown navigate New. TERM, 1837. al.J was to include not declared, that the true intent &c., he merely of Elizabethtown. but the whole shore or navigable part “Any point, would he, said “in favour ren- narrower construction” grantor It would be like the deed a fraud der grantee. granting and between two then exclusive given points, ferriage setting within few rods of those aid within very rival ferry points, up of the line of The common law the same course travel. contained case, dictated sounder very by principles applicable judg- If one had a ment, a more morality. enlightened ferry by and pre- another erected a so near to it and as to draw ferry scription, away custom, nuisance; its it was a for which the had his injured party action, &c. The same rule in its and remedy by applies, sub- spirit stance, to all and exclusive must grants monopolies. grant so as to it due effect by so construed give excluding contiguous and more to the apposite injurious competition.” present Language Here, there is an case could not well be exclusive imagined. to Boston on the old of a from Charlestown ferry ways; must bridge so construed as to exclude all it not also be contiguous injurious ? Such from such an opinion, competition enlightened judge, to be not overthrown by general suggestions against making any in implications grants. legislative

The case Miller, v. Newburgh Turnpike (5 Johns. Company Ch. R. decided same learned still 101,) more judge; directly and, as far as his can point; authority go, conclusively establishes doctrine, that the franchise of a is not only ferry confined to but that the franchise of a is not ferry ways, confined to bridge termini, and local limits of bridge. the.plaintiffs had erected a toll over the Wallkill river connexion with bridge under an act of the and the defendants turnpike, legislature; after- wards former, erected another road and near to the bridge thereby the toll diverted from the The suit was a bill in plaintiffs’ bridge. for a of this chancery, nuisance perpetual injunction plaintiffs’ and it was at the bridge; Court. accordingly, hearing, granted “ occasion, Mr. Kent, Chancellor on that said: Considering proxi of the new and the mity traveller has facility every y bridge, means of it, and the road connected with shun the bridge, plaintiffs’ which he would otherwise I gate pass, obliged cannot doubt, moment, is a direct for a that the new of their immediate disturbance plaintiffs’ enjoyment privi of. “ road, termini, &c. created a leges,” competition new SUPREME COURT. v. Warren' Bridge et most franchise; Statute injurious, becomes, what is deemed And, law, franchise, such a nuisance.” respect advert after to his own ing already language, quoted Gibbons, (4 Ogden John. R. 150, Ch. he added: “The 160,) same'doctrine applies.to exclusive statute. All created-by privilege come privileges within the reason equity No principle. road, rival or other establishment of a ferry, similár kind, and for like can be purposes, tolerated so-near to the other as to affect materially or take its custom. away as a fraud operates grant, to defeat it. The goes consideration, individuals are in vited expend money upon great, expensive, hazardous works, as roads and and to bound to bridges; ke'ep become them in constant and an exclusive toll. good repair; grant of This thus for a purchased valuable consideration, cannot -be right, taken direct or indirect away by means devised for the purpose, both of which -are unlawful.” Now, when the equally learned chan cellor here of an franchise, exclusive speaks he does not privilege, allude terms in the statute grant expressly pri giving-such limits'; the local vilege beyond the statute contained no to words an effect. The indeed, was such grant, by necessary implication as to exclusive, limits, local for the could not grant . any same with the termini bridge same It place was to such a of a franchise, sense, in grant exclusive this and in no other, that his And he affirms the doctrine in the most language applies. terms, that such a carries a positive it to grant necessary right all exclude as an incident. And injurious competition, indispensable his turned this judgment upon altogether doctrine. true, is

It that in case, the defendants did not erect the new act. But that is not material in bridge legislative under regard now to under we are now point consideration. con point e is, whether the of a franchis to sidering erect grant a bridge or. is confined to the limits or ferry, termini, to the points local . of the or to the planks bridge, ways learned ferry ferry chancellor such doctrine, with the most rejects pointed severity “It a fraud operates” “as phrase. (says he) upon grant, “ to defeat it.” The includes to an goes. grant necessarily right “ exclusive toll.” road, No rival or be can tolerated ferry bridge, so to the near former Now, as to affect or its take custom.” .away if be such the true is tlje franchise, construction of it such grant as true- a in rela as just construction relation to the government TERM, Bridge [Girarlos-River that to It would be absurd the same say tion to persons. private an means one as to the entirely public, opposite thing grant If to exclusive fran relation to individuals. right thing from the nature and of the exists, or toll it exists chise objects grant; be in all It would directions. repugnant applies equally sense, as well as of say notions common legis justice, own The whole had a to commit a fraud its lature upon grant. right such a notion. learned chancellor repudiates reasoning maintained, But manner is the doctrine in what of a is to the and the franchise franchise confined ferry ferry ways, said, of a to the that in it It-is Saville’s planks? Reports,' fernp is in to the is laid down “that a respect place, landing water; one, water and the to ano may férry belong of this There can be doubt doctrine. A must ther.” ferry must termini, local limits. places; landing over the water. And is not include only passage -right it be a If true, whether ferry by prescription, equally grant?. difference can there be so,_ value rff exclusive or of not each cases Does rest on grant, prescription? But it added, Saville: “And in places? landing every ferry, land on both sides of the water to be the owner ought (tyelong) he cannot for otherwise land the other ferry; part.” this is meant the owner of the must Now, ferry the. land, law; is, is not all that owiier he required or easement have a So it should was places. landing Kendall, 6 703; in Peter v. Barn. and Cress. and the dic adjudged overruled. If the tum there same to be principle Saville then, I think it must to a as there must (as be a be,) applied, of Charles have' proprietors subsisting right.in the old there must be an ferry ways, places landing assign ment or of those Harvard ferry ways by implied college, But of this I shall for that here purpose. speak proprietors after. (who

One of the in the state court the learned judges against admitted, that if be forcibly should plaintiffs) prevented person an for from the it would be over plaintiffs’ bridge, injury; passing to which an action on case lio. I assent this doct the would entirely rine, which to me to be founded in the most sound reason appears is the case of the Bailiffs v. Tewksbury ing. by supported 6 Diston, lord East, R. the cited Ellen- 438, by authorities by 630 SUPREME COURT. et v. Warren [diaries the occasion;

borough doctrine of Mr. by especially Powell, White, 2 948; C., Justice v. Lord and S. Ashby Raym. be, if Mod. But how can this con- the franchise the is bridge mere fined the local limits or timbers of If bridge? right toll does take not commence attach in the plaintiffs, except when arrive on how can an action lie for passengers bridge, for from proprietors obstructing passengers coming bridge? can ré'medy with their only coextensive plaintiffs And franchise. action lies for an obstruction because it toll, passengers, goes impair right prevent earned, does not the its diversion why being passengers means, action, cause of equally since it give goes, more, to of the' If nay toll? equally, impair plaintiffs right could not own block- impair destroy grant all avenues to the how can it bridge, ing up possess the tolls a free all away draw which must bridge, necessarily For I myself, withdraw cannot passengers? perceive any ground of action is which á maintainable obstruction upon does- equally apply .diversion passengers, passen- case, In each is franchise injury, same, gers. although are, or means used bemay different. .the is, truth franchise, as, reason of a why grant - of a or of a local ferry, in its example, necessarily though deemed to limits, extend those local limits yet beyond by opera intendment of law; tion founded two fundamental upon great of law to all applicable maxims One is doctrine grants, already laid to, and down in alluded Liford’s in 11 46, 52, Co. R. a. concedit, Lex est cuicunque, aliquis, concederé quod id, videtur et or, esse non it is sine res as with potuit; ipsa quo expressed pregnant Mr. Twisden, Justice Ricroft, Pomfret v. brevity by Saund. R. “When 321, 323: the use is granted, every thing granted-by havp the use.” See also grantee Lord enjoy Askwith, 234; 323; Hob. R. 1 Saund. R. Note Darcy (6) Wil is, Co. Lit. Another liams; that wherever a (a). made grant is. consideration, for a which involves valuable duties and charges, shall be construed so to make the indemnity coexten burden; Qui onus, serttit sive sentiré debet commo dum. the case of there ais ferry, public charge duty. must ferry of an keep owner good repair, peril indictment He must sufficient for all travel keep accommodations TERM, 1837. 631 Bridge Warren et v. Bridge al.] River [Charles content himself with a He must reason lers, all reasonable times. at will return, In the law is the exclude able toll. Such jus publicum. deem new ferry and nuisance every all injurious competition, and toll. from him custom See Com. which subtracts the ordinary is the B. Id. So duty owner Ferry. ferry Dig. Piscary, strong 3 Patrick, it Mod. held, 289, 294, that was in Paine v. public, that himself from not owner could not excuse ferry keeping he had erected a boats, even that more proper showing be a fraud such a for It would convenient passengers. of a the burden. travel, divert and ferry, yet impose would, useless, to take toll unless it should be ex might within all the bounds of rivalship clusive another injurious construed to extend franchise therefore ferry; beyond distance; reasonable for limits, local and to exclusive within a reason that to the fair plain indispensable enjoyment and franchise toll. The same without a principle applies, shadow of that I to the difference am able to case of a perceive, for the duties are and are bridge; publici passage juris, .pontage different for but names toll for exclusive transportation.

In the at the term has been further present contended, argument at events, all in the state of Massachusetts, that the ancient doctrine' force, of the common law in relation to is not in ferries never ferries in Massachusetts are held at the recognised; will of mere be established them and legislature, annihilated them at of course that hold pleasure; grantees durante bene And in confirmation them plácito legislature. of this certain of the colonial view subject, proceedings legis record, on, been relied those stated in the lature have especially 1650; 1641, 1629 to colonial act between years against is, substance, like the (which statute monopolies, monopolies, I. ch. 21 of and to the colonial and 3); general pro James ferries, statutes, 1641, state 1644, regulating passed vincial 1781, 1647, 1695, 1696, 1710, 1719, some 1646, 1787; Charlestown and which contain Boston provisions respecting special ferry.

As of the colonial so referred to the proceedings government, no such conclusion. But some to, in establish my judgment ot it. least, Thus, them, example, at directly opposed at Lynn to Garret two Spencer feríy granted two it was boats put ordered be years. SUPREME COURT. shall take suffi Ann Annisquam, liberty Cape tween shall toll, fit, as the court think for one-and-twfenty. years. cient within these the colonial repealed grant's Could government In 1648 had John at Glover pleasure? terms specified over between Dorchester river .him to let ferry Neponset given or term of seven Braintree, persons years, to any person and heirs, his as his for to himself and inheritance to take it or else &c.; and such a may be such at as kept place price ever; -provided for the and country, pleasant most convenient general be Glover, act, to this had taken this Now, ferry according court. could, inheritance, heirs an the colonial and his as legislature himto rather, Or can it be that it at its presumed revoked pleasure? intended such a an inheri ferry, confessedly colonial legislature It be to held will? would to be an estate at tance, only repugnant notions interpretation. all legal and court ordered between Boston 1637, ferry general 1640, afterwards, let for three was to be years.

Charlestown From that to 1785, it down to Harvard time collegé. granted ‘ as its But the and claimed inheritance. held college always that it was not to never subject supposed regulation college far as interests were concerned. The so public the legislature, and 1654, 1694, 1696, 1781, establish this. 1650, acts That of the ferries in Massachu many show But more. they held were under held, mere always tempo were perhaps setts or of certain to licenses whom legislature, magistrates rary not But it is entrusted, clear, denied. as that there were held under more tenures. ferries co 'permanent were free, to ferries toll 1644, authorizing magistrates pass act lonial out, -to or rented ferries as are any, appropriated such except hands; then it is “ordered that the countries’ out of are The act of 1694 excepts country.” their paid passages “ and settled ferries as are stated already from its operation The colo town, to whom appertain.” the court either by to the town of inducement an Cambridge, act nial one, or to at a new to er.ect bridge Cambridge, repair other persons “ should continue certain order, tolls) declared, (granting is' maintained said serviceable a time as the so long in force it is the colonial So that plain, legisla and safe passage.” to both ferries be held by and-bridges perma ture did contemplate to be at pleasure. nent revocable tenures, TERM, 1837. v. Warren ferries, answer But laws one to general respecting confined to the due their provisions generally' regu given, far and so as the lation ferries and matters publici juris; , which to be enforced and public have rights protected, ought had enforce protect by proper nature, And mot of this to matters laws. strictly regard suitable within the state as enactments well all such may. ferries apply state, under the license of the' and were were held mere temporary at revocable controllable pleasure by legislature, were; ferries in the state number of very predicament large ferries, also which Charlestown seems ferry those (among been, at control had which a modified been,) over legislative establishment, I results, these am not reserved. Beyond pre original- had, or- were ever admit that these statutes either supposed pared before I should admit such to -have And any legitimate operation. of some solemn conclusion, 1 should the. evidence require judgment Massachusetts, of a court very point. justice, extent which doctrine But the presses im- argument' be vested correct, any principles can possible respecting rights exist, free What is it? any government. recognition or have That all in Massachusetts revocable and ferries are at extinguishable ' of for then, the Massachusetts a valu- pleasure. Suppose, legislature from A to B to a should consideration ferry grantee able grant life; or for it to a will be con- heirs, or forty years, his grantee revoke, or can take annihilate that away, that legislature tended make That such a cannot within period? grant grant is no it in the denied.; there consti- prohibition touching well be it can take or resume Massachusetts. such a away of tution .That tribunal in that state. has never held yet any judicial .grant, to all sorts of is as well established as unless an grants, The contrary for the as be its any principle reserved purpose, express power Court, In the case now before this every very judge jurisprudence. state that coürt of the admitted could of legislature supreme charter to or revoke its Charles River Bridge. not resume Why not,'if 'solemn of to a a.ferry revoke its private person, grant could or of stipulated period grant? corporation, during land, of well resume its or as legislature just grant might road, or of of other of a a rail franchise, grant turnpike, any its within charter. period- stipulated The doctrine then that you moment ascertain untenable. XI. —4 L

Vol. SUPREME COURT. v. Bridge et what the terms and of a of a stipulations other any ferry, are, that moment franchise, be cannot They obligatory. So or resumed. this Court has in the of Fletcher gainsaid, said case 871; v. Peck, Cranch, and so are the unequivocable principles be which cannot overturned justice, without free every shaking go vernment to its foundations. very If, then, the between ferry and Boston was vested-in Charlestown perpetuity corpora tion of Harvard it could not be' taken college, without its away consent It was a so far withdn.-.Vn legislature. ferry, franchises. legislation trenching It .is the very point assuming controversy, say ferry i.n. was held the mere at An pleasure exclusive legislature. claim, and user, possession, thereof for profits taking years by one fifty corporation hundred Harvard college, was as without decisive evidence of interruption; iis exclusive right in- the franchise as the title deed man to perpetuity, his own estate. Massachusetts I never, know, has as as far breathed a doubt on the All the point. the state court ad judges mit the exclusive Harvard in the most college ferry, then, terms. unequivocal argument, The. doctrine English ferries not been is not force in Massachu adopted, setts, is not For I can I supported. myself, only have al say understood that the doctrine on ways constitutes English subject of the common-law Massachusetts. But what is part most ma stated, not one of terial to the learned state court judges or denied the doctrine, doubted it was be though directly" brought fore-them; seriatim, they gave, opinions diver great containing bn sities It is also established points.* judgment fully the case of Chadwick Haverhill Proprietors Bridge, already cited.

But it is that some local limits must to such urged assigned them, and the must Court for otherwise would grants) assign with the involve coextensive absurdity being range river; or other must some every’- ferry involve diminution bridge how toll; (it much is is asked) to constitute an in- necessary I of the answer, have fringement right? already given-an part, The rule of law is clear. The of it suggestion. application must circumstances of each case. depend upon particular Wherever * Proprietors Bridge Proprietors See of Charles Bridge, River v. of Warren R. 341. Pick. TERM, js [Char, River v. 'al.] other franchise, or is so near that it any ferry or bridge injures diminishes the toll and essential there it is a positive degree, nuisance, franchise, and is actionable. invades ought not, be abated. But whether there be such an or is a matter, injury law, not of but of fact. is Distance no than as important, otherwise it All of fact. that is is, that there question bears required, sensible, should be a In the case there is positive present injury.. no room to doubt for the upon point, bridges contiguous; and Warren it was after took three-fourths of opened, away Bridge, trgyel from Charles River profits when it be- Bridge; came free, it now (as tolls, all the is,) away or all necessarily took and trivial amount of except tolls. unimportant What I said, however, have is to be understood with this qualifi cation, that limits; the franchise.of local but, bridge assigned it is a across erect simple grant river from bridge one another, without limited between point being any particular towns, vills other local limits. now case before the I Court, stated already that the franchise my judgment to erect between Charlestown and merely Boston; and abridge there m?,r' not, fore it does exclude the necessarily, from legislature .g other for the of a between Boston and grant erecting town. The towns, exclusive those between right being only pre cludes another between those -towns which is grant legislative inju rious Charles case Frank T. (4 R. Bridge. Tripp ais clear for this doctrine. It was there decided 666) authority of an A B, between did not ferry exclude a exclusive ferry A and C. between But the counsel plaintiffs’ argument Court, admitted ferries in tacitly must general “ extent, some considerable which their other opérate; right may wise the exclusive would be of no That avail. extent privilege must local -circumstances.” And there is the governed by greatest reason because owners of supporting ferries-are rights, bound at their them to the and are peril use; there supply fore entitled to the from them. fairly public advantage arising said,

But it is law, this is the what then is to become turn- and canals? Is the pikes new precluded authorizing canals, or new because cross the turnpikes simply path old ones, and diminish their tolls? The incidentally receipt answer has its local plain. termini; local -limits and- Every turnpike and of end. No points one beginning ever imagined. SUPREME COURT. River Bridge Warren v. [Charles al.] a new legislature might grant turnpike, same loca- exactly and termini. tion That would be to rescind first grant. of a between B, A and turnpike does grant not'preclude legisla- from the turnpike ture of a and between A grant C, even it though should travel; of the incidentally some for is intercept it not necessa- a nuisance to the rily former different, The termini grant. being are or different. if But grants substantially legisla- ture' should a second turnpike, substantially away taking whole travel the first between the same turnpike local points; I it is a then, violation of the say, of the first And turnpike. old, of Mr. Chancellor and opinion Kent, all the authorities on ferries, me in the doctrine. subject support

Some reliance has been Lewis, the cases of Prince placed upon v. Barn. and Cress. (5 363) Mosley Walker, (7 v. Barn. But, Cress. 40,) me, it impugning reasoning. appears . than that rather shake it. fortify the former the king a market to A and his heirs, in within certain granted place speci limits, fied and the used of fhe limits for other part grantee purposes, was not left It for the Space enough ordinarily marketing. held, that the owner of the market not an ac maintain could tion marketable a person against selling goods neighbour hood, without that at the time of the sale there was showing roo.m in the market the seller. This admits the ex enough clearly owner, if clusive there is room in the market. right enough The other case affirms same as indeed it was before principle, Chadwick, affirmed 7 Barn. and Cress. note. Mosley said, then it is that all But this rests again, upon implication, not words of I admit that it does; but I .the charter. again natural say, implication necessary. indispensa of the ble effect franchise cannot grant. subsist proper least for it, without at valuable What practical purpose. ion there be to can arise from the implications, very objec nature and it be If the full en objects grant? indispensable toll, take should be exclusive within joyment limits; is it reasonable, certain should be so con just If the to erect a would annihi strued? new power legislative not, late a franchise is it already reserved, unless granted, expressly intendment excluded of law? Can necessarily reservations mere of a raised defeat the espe implication operation grant, such a when reservationwould.be with the whole cially coextensive TERM, Bridge et Bridge v. of a recall the amount to reservation right granted, whole grant? sides, that from the it is admitted on all case

Besides, in this very charter, directly wording defective language it is to erect yét bridge; agreed, to the proprietors given from the power necessary implication grant, passes by that therefore, The it would be Void. sur- utterly argument, otherwise of to the implications; as making renders propriety point of what is a to the mere consideration necessary reduces question the whole case this I Now, would willingly put upon implication. to the fair full it .is not as operation^ and. indispensable whether point, be in the full should secure that the enjoy: plaintiffs of grant, ,ment or as that diversion; disturbance tolls, without of their right If be the tolls- to erect the may bridge. should have power erected the next free day,' a all away by contiguous swept sensé, of the' franchise is ob- said, in object can it be any of the common law teach us on the sound What does tained? logic crown,..admits of two construc- If a even grant, thp. pqint? will defeat, and the other and se- will tions, promote one the latter is to be followed. fair operation grant; cure the defendants turns is, that the whole truth argument defeat reservation power legislature an implied upon construed, its own terms, own upon destroy grant. grant, law, of construction common the plain principles upon is It is it tó be an alone exclusive grant. judged, ought and in franchise, tolls; all of a publici juris,, grant exclusive, law asserts the be so as the common cases such seeks to exclude the competition. argument injurious prevent law by implying- exception touching grant, common to make new And let authority grant. legislative favour- as often as we it comes may, us position question change result; -the reserved this, necessary legislature its own and annihilate the to destroy grant, pontage power If -it of this short exercise the Charles River Bridge. stops choic.e, Now, and not its I maintain, it its own duty. its power; to a a -reservation resume power that' such .to equivalent been contended, has never for a moment that the yet grant; to resume it. competent such, that, the answer To to the unless already given objection, exists, put there stop be a to the will progress reservation SUPREME COURT. River Bridge v. Warren etal.] of’ all I wish, in public improvements; connexion, to add, that there can never follow consequence upon doc opposite trine. If the public interests that the exigencies fran require chise of Charles River should be taken away, impaired; done lawfully due upon making compensation propri “ “ etors. Whenever” says constitution of Massachusetts, public exigencies require of any individual should property uses, he appropriated shall reasonable receive compen sation therefor:” and this franchise is is fixed, determinate property; told, We property. indeed, that where the damage (as, merely erection consequential, is said new bridge, it it would be,) constitution does not entitle the to com party Hancock, Thruston R. 220, v. 12 Mass. pensation; Callender Marsh, 1 Pick. R. are cited in of the doctrine. With support 418; cpnfess others, of' I possible to be respect opinions myself those who could law of never either of those among comprehend cases; and I continue to doubt, if humbly principle authority maintainable; are and I think doubts they easily fortified my But, recent decisions. cases these to be English assuming unques tionable, do not to a case like the they the erection apply present; of such a a violation of the That new franchise. plaintiffs’ franchise, reaches, so far as it and so far as it is private property; it is the a man is away injured, taking private Suppose property. mill, the owner of a and authorizes a of the diversion it, water course the mill is or supplies whereby injured told, are we to be ruined; this is a consequential injury, not within the constitution? If within the not scope scope constitution, is, it to the fundamental of a according principles which cannot free a violation be taken private government, rights, without Gardner v. The case of away compensation. Village Ch. R. would sufficient 2 John. authority Newburgh, if it did the eternal sustain this not stand upon to reasoning; princi which is not a by every government pure ples justice, recognised despotism. has been introduced to

Not a shadow of establish the authority of a défendants, that the franchise toll-bridge con- position mé, seems to planks bridge; yet fined them; onus is on for all the the common law probandi analogies indeed, are are to contend that the driven, them. They against limited to the ferries, same are ferry ways, apply principles TERM, unless some them a more extensive prescription given range. But here, unless I am mistaken, entirely have failed they to esta- blish their As I understand the authorities, position. are, un- the other Are we then to desert the equivocally, way. wholesome common law, our principles liberties, public bulwark and the shield of our protecting private assume property; doctrine, which annihilates the of all franchises substantially security easements? affected public

But that if the said, it is doctrine contended for be not true, then to a becomes, facto, a every or ex grant corporation ipso monopoly bank, clusive of a anof insurance privilege. company, or of a becomes a company, manufacturing monopoly; excludes With the deference competition. injurious greatest respect an I those who such cannot but press sur argument, express my should be As as the case in the prise urged. long ago year book, 22 Hen. VI. 14; difference was out in pointed argument between duties and involve matters public grants benefit and such as are for common mere people, private benefit, no such If consideration. a bank, or involving insurance is established in town company, company, manufacturing an act of no one ever incorporation; imagined corporation business, to do was bound employ capital, manufacture to make insurance. The a mere .is cor privilege private goods, for the benefit of stockholders, privilege used or porate own at their when pleasure; operate they please; Did when man ever please. that he ha stop imagine d a note bank, discounted or a underwrit policy insurance ten. Such are company? deemed always grants No indictment lies for a non user. But in cases of privati juris. nature, ferries franchises of a like (as has been bridges, are affected with a Such shown,) they publicum. jus grants for the accommodation; made public are pontage passage to be levied travellers; authorized can (which be only by pub and, return, in the lic are bound to authority;) proprietors keep up , all travellers, suitable accommodations under the of in penalty dictment for their neglect. tolls áre deemed for the are burden,

The an deem- equivalent ed exclusive, because not otherwise afford in- any they might just In the bar, case at of Charles River very demnity. proprietors' (as we seen,) have their draws and Bridge, compellable keep to SUPREME COURT. al.J in to an repair, during period good seventy years; pay to to Harvard reasonable give accommodations annuity college; and, not, do travel: be they may grievously The burdens them, amerced. not the being exclusively must remuneration; (I tolls must way not by repeat it,) granted an insure exclusive, be there Is indemnity? equally any analogy of bank, to the case or an in such a case .a aor insurance'company, The case of Jackson v. 3 Pe company? manufacturing Lamphiré, ters’ R. which, contains no doctrine in in slightest degree, I have been that which terferes with establish in endeavouring I decision, concurred; that I case. believe that and I present now to call in no that question see reason soundness of decision. not inculcate the That case does that no pretend doctrine implica made,-as to of contract, be matters tions can beyond express it did, it would If be in direct terms conflict with other grant. considered most this Court. It adjudications asserted, profoundly in that case carried no grant that that only, implication the land therein should free granted, enjoy any legisla from grantee to be made violation of the tive constitution of the regulations so broad and Such so unmeasured, state. implication, far acts which beyond' extend could held any in any might just could, no fit revoke impair grant, sense reasoning, the nature of the What from said the Gourt on that grant. deduced “ to J. made state, C., only occasion? contract grant ip of the land heirs, and his contains assigns, question.. patent do or not to do further act relation to covenant not, we do feel at to create land; and one liberty not, act, The state has 'this force impaired implication. . does not to talcé land .the profess attémpt grant. to one C., it not under Neither him. give claiming assigns remains full force; award effect. does the produce grant and, held state asserts conveyed by.-the grantee; property had been the fact. But reverse no claim to .suppose Sup it.” land, state had taken it to ano away granted pose o t own otherwise does grant: or asserted ther; impair Court, follow, from this would very reasoning violated the held implied grant?. obligations Court would held, been so or the have over it must have Certainly Now, there other cases. most solemn its own judgments turned between be, real distinction not, and cannot JLand TERM, 1837. Bridge et Bridge v. River al.] [Charles in each must be franchises. implication, and a grant resumed, or im shall not be that the same, granted viz. thing grantor. paired charter of the Charles that even

It has been further argued, on the of the such a contract River does part legisla- imply want of for, it is for authority as void legis- ture is contended of eminent it is a surrender it; because lature to make right and its benefit successors domain, entrusted-to legislature If at to alienate. it is not liberty which argument public,- entrusted with that the means no more than legislature, being to surrender franchises, cannot, contract, agree grant it would be to con- unnecessary part power, generally, one that the can sider the for no supposes argument; legislature If the means surrender its power. rightfully legislative argument the constitution more than that the having right legislature, are franchises,) to take which private property, property (among such, contract, itself of cannot divest public purposes, right of these cases there little reason to contest it. /Neither would Coprt. I do misun- is like that But the not (if belore the argument, further, derstand and denies the it,) right legislature goes be- build a make a contract exclusive bridge right granting itself the. from Boston, tween Charlestown and thereby taking at its Boston, between Charlestown another right the contract does not exclude pleasure; although because it for use actual upon making compensation; taking public domain. of eminent trenches sovereign' right “ eminent do to consider whether the It is phrase unnecessary is main,” used in the .quite in the -sense in which objection, to be understood accurate. The of eminent domain is usually right only ultimate appropriate, sovereign power within of all citizens but the property public property, private (B. 1, 20, ch. Vattel the territorial to public purposes. sovereignty, terms; for he says, s. seems so to understood the 244) the society sovereign disposing, right, belongs wealth (the of all the case of and for the necessity, public safety, “ eminent called the domain.”. state, contained in the property) And he adds, that it is prerogatives majesty; among placed be, “all he defines which, section, 4, in another ch. s. (B. 45,) command, or authority, without Sovereign prerogatives XI. — 4M You. SUPREME .COURT. Bridge v. Warren could not be manner exerted most conducive “

welfare.” domain,” then, eminent does not compre hend all, but only among prerogatives majesty.

But the sérise, uses words a broader as including objection what the and be deemed essential attributes of may ordinary sove to as the for welfare, the to provide public reignty; right open and from build time to time of to make ways, to bridges, high grants . doubt, franchises for the Without these are good public proper attributes of sovereignty, prerogatives resulting its general And so nature and functions. Vattel considers them in the passage bar; 9, cited ch. sec. 1, 100, at the b. 101. But are attributes they be of can sovereignty exercised only, prerogatives only itself, unless delegated. specially to

But, examine into true without the stopping meaning phrases, it to say, however extensive the may proper prerogatives be, and attributes of may free sovereignty theoretically govern ments held universally are to be restrained within some limits. the free Although sovereign governments appropriate as all well as the for public property, private, public purposes, therefor; it understood, been yet never making compensation at least in our republic, never can take sovereign power “ B, of A it to eminent private property give domain;” take it at for or, all, that it can or, except public purposes; that it can take it for without the public purposes, duty responsi for the sacrifice bility making compensation private pro These one, whole. limitations perty good to be fundamental axioms in ours; free like been'held governments, received the of some our sanction most emi accordingly Yattel down, nent himself them in discuss judges jurists. lays domain, of eminent as the funda ing question among mental even government,, principles upon bidding sovereignty “ “ If,” itself. he, nation itself says disposes public pro of this domain,, virtue eminent the alienation is valid, as perty made When it with sufficient in like disposes having power. manner, in a case of (the necessity, possessions property) individual, or of an will be the alienation valid for the community, But demands, same reason. that this this in community,.or justice and, out of if the dividual treasu money; recompensed is not to it;” able citizens are contribute to ry pay, obliged TERM, 1837. Bridge Warren Bridge Vattel, 20, b. ch. s. have also been They incorporated our constitutions, most of state and into that of the into United what is most States; and, important present argument, óf Massachusetts. So state constitution as remain in long must be treated as constitutions, they those limitations imposed by and, a itself; fortiori, all its authority upon de sovereign Massachusetts is in no legated agents. legislature sense just It is but with limited sovereign. agent, authority, state transcend cannot the bounds rightfully fixed in sovereignty; are, constitution. those limits I shall What consider. presently but that I It is do say, not understand it justice argument not in all cases, maintain that as a legislature ought matter of where compensation; private property franchises duty, give But that the is the final taken away. judge manner, circumstances, and the under which it time, should be withheld; whether when the is taken, or property after- given is, or is not a case wards; and whether at all. compensation what see relation to But let us argument sovereignty in. admits, has, that the It power sovereign among pre general. build the to make to to erect fer bridges, right grants, rogatives, to create franchises for out ries, to public lay highways; pri it to make such it If follows that grants, a right vate purposes. take, a to to hold these franchises. It right the grantees that to declare the could power be a solecism sovereign would grant, If take. it a to such fran may one could have right grant and yet the define and limit nature extent of such it fran chises, may is the limitations must as the chises; for, depend power general, upon of in and discretion the power, sovereign the pleasure making good limits, If the it it may prescribe may contract the grant. particular or be itself others. shall not invaded these limits that that if the from this follows, view subject, sovereign si franchise, it irrevocable within the any good grants power else, be; or in they may every whatever the limits granted, and the identical held pleasure; will franchise only during be grant be at to or the be revoked will person, may may granted and, is not indeed, This latter doctrine pretended; the sovereign. If, in is our free the other unmaintainable systems government. hand, sound, be cannot the grant sovereign power argument limits, and within certain cannot contract to be exclusive franchise SUPREME COURT. et ah] TVarren v same, or the franchise, to like within same limits, grant first it because would sove to grant, prejudice abridge the exercise of its to ar franchises;, grant reign power right to all franchises, whether equally grants gument applies for, ianto, do broad of narrow: exercise of the pro abridge the same franchise within the same limits. power grant sovereign if the should Thus, an example, sovereign power expressly grant waters, to build a betweén bridge-over exclusive navigable B, and should A contract with towns of expressly grantees, be should built towns; no other between the same that bridge would, be principles void upon argument, equally grant to the franchise within as‘it planks would bridge, regard outside franchise for, planks regard bridge; would, tanto,, case, it surrender the each pro abridge a new within the local limits. I am grant bridge the sovereign extent; is not but that it argument pressed seems aware from it. The consequence the fran necessary flowing grant me wide, feet exclusive within twenty those chise if an is limits, certainly, surrender of abridgment obligatory, another within -the grant power bridge same'limits; sovereign mean to diminishes the say every grant we things upon act, can is such an rightfully abridgment. Yet the admits, that within the limits and planks argument exclusive; is and cannot be itself, the recalled. There is no doubt, necessary that there exception every grant, that use, be taken if it is wanted sovereign power use, Such compensation. for such upon making taking not a contract; but strictly violation exception. resulting of. nature attributes from the sovereignty; implied from the very terms, or at least matter of acting subject grant, suo# jure. is, the of Massachusetts as I

But legislature have said, in already the sense state. The sovereign just ho sovereignty belongs the the ot state in their to character as people original indepen- community; the dent those legislature possesses attributes of those which sovereignty, have only, to it delegated the by state, under its constitution. people doubt, is no There that so among to powers the le- delegated is the to the franchises of power- grant bridged ferries, gislature, others like to of a nature. not is power grant limited by TERM, 1837.

(cid:127)JANUARY al Bridge et ] v. [Charles River of course constitution; and it is general terms restrictive and the extent manner, terms, to grant- and unlimited discretion; in its sound These are matters resting franchises. ing hold, ac- to grant, grantees and having exclu- and to the extent terms of their grant, cording conferred, result of This is the thereby. necessary sive privileges stated. authority, already principles upon general not alone. does stand upon reasoning But this doctrine general court, state affirmed all the by and positively is' directly judges of the state in this (the-true-and constitution,) very rightful expositors admit All of them of an franchise of case. exclusive grant made is sort, this absolutely legislature, obligatory upon or resumed; and cannot be and that it is a revoked part legislature, contract, not. be that it shall revoked or. implied grant, as a resumed; that, contract, it is the extent of the ex- valid clusive franchise So that the tribunal the state granted. highest is entitled to has decided pass point, judgment very the soundness of the stated; now and has af- against very-objection firmed the of such a validity of the franchise. grant obligation the’ learned was question, not whether among judges, grant not; valid or for all them admitted it to good irrevo- was, cable. But the what was, in question construction, legal nature and-extent of the exclusive franchise This is granted. ' all. an unlimited Although legislature power fran- grant chises, Massachusetts; constitution of not entrusted with any to recall of general resume sovereign power therm-' On the is there an' contrary, in the bill express prohibition in that constitution, restraining taking private pro- conditions; first, two perty, except it is wanted for public use: and due is secondly, compensation made. So that the power franchises, are conic' grant edly property, gene- ral; while the impair obligation and to grant, re- sume the An limited. act property, legislature transcend- these bounds, void; ing so it has been utterly held constantly the state The same doctrine has been judges. maintained Court, on various occasions; and especially Fletcher Peck, Cranch, 136; R. and in Woodward v. Trustees of Dartmouth Col- 4 Wheaton, R. lege,

Another answer has been, in argument fact, already given. It is, by the of a particular franchise the legislature does SUPREME COURT. et al.] Bridge River Bridge v. Warren [Charles not surrender its to power Franchises, but grant parts merely its to franchise; same for it cannot which power grant that grant it has Its already with. parted same; remains the but on which it can indeed, alone of. thing opérate, disposed may, it uses, take But it cannot again paying compensation, it, or it resume to another under other grant circum- person; any or for other stances, any purposes. however, truth,

In itself argument upon proceeds ground is, which Court cannot act or sustain. The that upon argument exclusive, state makes a of a con franchise legislature grant shall that it remain exclusive within is an limits; tracts certain local as or excess of void surrender power, abridgment But this is over under the state constitution.- point sovereignty, has no to Court We have no inquire which this jurisdiction. law case, whether a state to own its constitu repugnant this to the constitution of the whether tion; repugnant but only whether, made, has been we are to say the contract States. If United and not to ascertain whether impaired; its obligation it. Such was doctrine of make could rightfully cited; 3 Peters’ already of Jackson Lamphire, the case Court is, answer that the state But the conclusive judges 280 — 289. R. contract; and held the that present settled grant point, already what the exclusive limits grant, the extent to be valid to are. ever head; maintain, I then, the whole

To sum argument up, interpreta- of common reason -legal that, principles that it a necessary implication carries with tion, the present .grant or essentially impair do no act to destroy shall the legislature court ex- of the state of the learned franchise; that, one (as judges will not state grant agreement is an there implied it,) pressed as draw so near Charlestown, Boston between another bridge learned and, another one; (as judge old' from the the custom away of the state there is an agreement it,) implied expressed tolls, so far respects its use the bridge undisturbed its authority. under or of own, acting any persons of its acts to resume grant, not contracts state, words, the impliedly, I main- of its or destruction grant. act do or prejudice relation established principle there is tain, authority does grants;-, of crown the construction legislative grants, is given, the thing concede this doctrine. Where and justify TERM, 1837. v. Warren ut also it cannot given; incidents, enjoyed, without I maintain doctrine different pereat. valeat quam res magis common.law, all the appli- principles is utterly repugnant nature; and that must a like we overturn of to'all franchises cable the of it can be of before property, securities of the best -some the common law the of that is maintain, birthright I established.. and that he holds of Massachusetts, the title deeds of citizen every under that maintain, it. I and incorporeal, corporeal, property, his. more law, the common there exists no of right under principles to Massachusetts, to erect the Warren of Bridge, in legislature Charles than exists to of River ruin of the Bridge, franchise former, or to authorize the former to de- to transfer the latter not to does mean its If the latter. grant molish and in so, let say expressly; directly; exclusive rights, any give then no misconstruction. The will of terms grantees admitting must abide the results of their at their take overweening peril, zeal. indiscretion, and confidence, formed' the terms of the its nature upon grant,

My judgment duties; and- its I seek and, its interpretation, design objects, I old for no but such as are as as the ru- principles, apply very new diments of the common law. that if I could the case were

But, persuade myself this.view Court, before this I conclusive only question not should upon which, humble another my rely upon ground, judgment, equally I that hold, decisive favour aré the plaintiffs. plaintiffs of their period' ownership equitable (during assignees of the old to Harvard between bridgé) ferry, belonging college, Boston; consideration; for a and, Charlestown as valuable an exclusive to are entitled to as ferry,-'so assignees, new erected exclude from- between those being places that If did exist, Charles River thé erec period. Bridge during tion would be that and would ferry, nuisance fact in' ruin it.. It would bé the case Chadwick exactly v. The which, Haverhill all I Proprietors Bridge; notwithstanding heard to I deem of the But,' contrary, very highest authority. of that I should at the same arrive independently conclusion 'The and duties.of general principles. own general rights ers of law, at common ferries, were not .the disputed by learned in the court to be in. the same judges precisely Massa state shall, as chusetts, not,"therefore, England. I attempt over go SUPREME COURT. Warren Bridge nl.] farther, with any illustrations, than that what ground have already, of this in another I opinion, part cannot suggested. accede to that ferry argument, extinguished by operation law bridge, acceptance annuity. it was indispensable the existence of my judgment, as should termini, ferry deemed to be still a subsist otherwise, franchise; on each ing side landing I shall not would be attempt over the gone. go reasoning, by maintain as which I shall opinion; examined with great Mr. Putnam, Justice clearness in his ability by opinion court, refer, I as state own gladly expressing-mainly my Indeed, is in there the-whole of views topic. opinion such masculine such a soundness vigour, depth learning, illustration; such forcible that in style argumentation every own I have availed his en step my sedulously myself of progress For I can I labours. myself, only say lightened yet to his is, no answer belief that in a heard reasoning; my juri is sense, it unanswerable. dical it close, I is to notice,

Before and I shall do proper it briefly, at the bar pressed argument strongly against plaintiffs; another is, that the extension the term of that franchise of. the act of thirty years, by the the West plaintiffs (erecting Boston between and the Bridge, Boston Cambridge,) acceptance amounted to a surrender or thereof by plaintiffs, extinguishment if franchise, their exclusive had they ever build any, bridges river; so that Charles are barred from they over now it setting up the Warren is Bridge. my there no foundation against judgment, whatsoever, law, either or in facts, to sustain If this„object¡ón. conclusion deduciblc from the act, terms of that any legitimate is, that the had claimed plaintiffs, such they exclusive any right river, whole would by over their of the new term of acceptance claim done estopped any to their fran damages- years of West the erection Boston chise-by their consent Bridge; obj to its erection: But is there no implied must warrant for the . of the of the act any of the part extension language ection.in not condition upon any is whatsoever. No surrender granted term asked, or The clause term, required. {my'Vight extending ¡¡ymere face, to be donation or of the bounty purports)- lcgisla ture, on motives of founded It policy.. liberality granted as an and ás a expressly, encouragement enterprise, compensation TERM, 1837. Bridge Bridge v. River tolls, which West Boston diminution of for the supposed .Bridge and in manner to Charles River no occasion Bridge; would suggests whatsoever, to be made or surrender sacrifice any In the next the erection West Boston plaée, Bridge plaintiffs. whatsoever, of the no franchise Their was plaintiffs. jnvasion, show, was limited to a as I have endeavoured right, Boston; and did not be Charlestown and extend between travel towns. West Boston was between Boston those yond Bridge water, at the distance of more than a mile Cambridge, miles; ran, three and as the roads then the line of land of nearly ever, never, for West Boston scarcely travel would perhaps that, nearer than distance to Charles approach Bridge. therefore, could not have been founded in notion of any grant, or surrender franchise extinguishment exclusive plain did for it reach to such an ; tiffs extent. It did not reach Cambridge, had and never reached it.

As of the committée, on the basis of which report the. West Boston it has granted, my judgment legal on the The committee are of question. bearing say, they of 1785, act did not confer “an exclusive opinion, to build the waters Charles river.” is true; That over of. true, asserted, never equally plaintiffs pretended to have In their remonstrance erection right. against Boston, West assert no such but Bridge, they right; they put mere considerations, themselves them upon equitable addressing selves to sound discretion of the If had asserted legislature. such a it would broad conclusion that right, justify any surrender, were called or did surrender real and unques tionable understood itself to be rights. granting and not boon; favour. was liberal, making bargain, asking because it meant to be in a case of hazard, and of just, acknowledged honourable beneficial to To enterprise, very public. suppose, meant to surrender their valuable and ex plaintiffs present of clusive franchise to thirty-four years, remaining put of it in the next or the next day, legislature, year, free, erect a toll or theirs, ruin should its'contiguity take is a away profits; supposition, my or. judgment, truly and without a it. scintilla evidence to extravagant, support remain; burdens were to payment of maintaining the 'anility Harvard to remain: and yet, college upon this Vol. XI. —4 N SUPREME COURT. v. Warren of their the extension term charter,

supposition, granted to a of a would amount bounty, fran shape destroy hour, the next at the next or pleasure day, chise legisla such an I cannot what ture. can perceive, ground implication not from words made; an or intent ex implication, arising inferrible act; front fairly the-face pressed purposes; avowed which are grant, objects wholly repugnant burden, confer a benefit, impose oppressive create a ruinous competition. that the act whole, is, my

Upon judgment of Warren the charter an act im Massachusetts Bridge, granting contract prior proprie pairing obligation and, the constitution of the United tors Charles-River Bridge; I am for is, therefore, void. decree States, utterly reversing a.nd for the state cause court, bill;)- (dismissing-the remanding' as to law and shall the state court for further proceedings, justice appertain. Thompson. Justice

Mr. I brother, Mr. Justice by my Stóry, delivered opinion On this full I consideration, considered. over, and read deliberately in it; in all the contained entirely principles reasonings concur decree of Mas- I court of am opinion supreme judicial should be reversed. sachusdts toon be heard on the cause came the record transcript

This court, holden in and for the tlie of Suf- supreme county judicial folk, in the commonwealth wás argued Massachusetts^ whereof, ordered, counsel; on and de- consideration adjudged, that the decree Court, of the said creed supreme judicial same is cause, be, affirmed, in this costs. court hereby

Case Details

Case Name: Proprietors of the Charles River Bridge v. Proprietors of the Warren Bridge

Court Name: Supreme Court of the United States

Date Published: Feb 14, 1837

Citation: 36 U.S. 420

Court Abbreviation: SCOTUS