168 Ga. 883 | Ga. | 1929
Lead Opinion
These cases are in this court upon writs of certiorari to review the decision of the Court of Appeals in Willcox v. State Highway Board, 38 Ga. App. 373 (144 S. E. 214). The State Highway Board instituted proceedings in the superior courts
After Willcox and Cook bought out Hilton, their ferry began to make money; and thereafter it proved very profitable. Between 1922 and the cessation of its operation, the ferry produced a gross income of $40,000. In 1925 the gross income was $14,119.76, and the net income was $12,384.38. The gross income from January 1, to April 22, 1926, was $3,064.60. The bridge was opened to the public on the latter date, and the ferry was then abandoned. The ferry-site is located some distance from the right of way and the bridge-site sought to be condemned. The State was not seeking to condemn and take any portions of these lands used as a ferry-site; and the lands sought to be condemned and taken as a right of way for the highway and for the bridge-site do not in any way interfere with the physical operation of the public ferry of
It becomes necessary, first, to determine whether individuals who own lands on both sides of a stream have the right, as one appurtenant to the lands so owned by them, to operate a public ferry, without a license or franchise from the State or its constituted authorities, authorizing them so to do. It is urged that such owners have the right to operate a public ferry regardless of whether they have .a license from the State to do so or not, and that they have this right under the act of 1850, which is now embodied in section 761 of the Civil Code. In other words, counsel for the landowners contend that this act grants such privilege. The code section is as follows: “Any person who may be the owner of any land through which a stream may pass, on both sides thereof, may establish any bridge or ferry thereon, at his expense, and may charge lawful toll for crossing, according to the rates of other bridges and ferries on the same stream, or, if none other, the customarj^ rates over such streams elsewhere.” Section 3639 of the Civil Code is as follows: “The right to construct a bridge or establish a ferry for private use, across a watercourse within or adjoining lands, is appurtenant to the ownership of the land; but the right to establish and keep a public bridge or ferry is a franchise to be granted by the State. Where such a grant interferes with the owner’s right of exclusive' possession, just compensation to him must be first made.” In Greer v. Haugabook, 47 Ga. 282, this court held that section 761 of the Civil Code is to be construed in harmony with section 3639; and so construing them, this court held that the owner of lands on both sides of a stream could not establish and operate a public ferry over the stream without a grant from the State. In Whelchel v. State ex rel. Wiley, 76 Ga. 644, this court held that the act of 1850 “merely grants the privilege to an owner of land on both sides of a stream to pass from one side to the other by a private bridge or ferry, and as an incident thereto to pass
But counsel for the condemnees rely upon the decision in Averett v. Brady, 20 Ga. 523, as holding the contrary. The action in that case was ejectment for the recovery of land and. mesne profits. Among the mesne profits claimed by the plaintiff was the income from the operation by the defendant of a ferry on the premises. The defendant insisted that the right to operate a ferry was a franchise belonging to the State, and that no one could rightfully exercise the same without a legislative grant; and that for this reason no rents were due the plaintiff for the use of that which did not belong to him as a riparian proprietor. This court, in the opinion in that case, said: “A ferry may be granted to a corporation as well as to a natural person; and in England it has been held that an information in the nature of a quo warranto lies against them, if they set up an exclusive ferry without title, but it does not lie for merely taking money of passengers. (Grant on Corp. 195 (186)). This last decision would seem to recognize the right of the owner of land through which a stream passes to establish a ferry and charge tolls without the grant of such authority from the sovereign power. The act of our own General Assembly of 1850 gave this right.” The court was not dealing with the question whether a public ferry could be operated without a franchise from the State. On the contrary it is stated that the defendant was presumed to have had a franchise to operate the ferry. It simply held that the plaintiff as the owner of the land on both sides of the stream could operate a ferry and charge passengers, and that
So the right of the condemnees to .operate this public ferry is not one appurtenant to their ownership of the land on both sides of the river. The right to operate this public ferry is derivable solely from the franchise granted to Willcox in December, 1917. The measure of damages to which the condemnees are entitled for the land taken by the Highway Board for the erection of this public bridge must be determined in view of this fact. The measure of such damages can not be fixed upon the theory that their right to operate this ferry is one appurtenant to the ownership of the land on both sides of the stream, and that this right has been impaired by the erection of this public bridge.
So the question is narrowed down to this: If a franchise is granted to the owners of land on both sides of a navigable stream to operate a public ferry over such stream, which they esstablish and operate under such franchise, and the State thereafter seeks to condemn’for a public bridge land of the owners, not being the landings of or approaches to the ferry, but constituting a portion of a larger tract owned by them over another portion of which the ferry is operated, are such owners entitled to compensation from the State for loss of the profits from their ferry, due to the erection of a public bridge over which travelers can travel free? In other words, are such owners entitled to be paid the value of the land so taken, based in part upon profits which they received from the use of the ferry before the bridge was built by the State? The owners of this land have no exclusive right to operate their ferry over this stream. “No franchise granted by this State shall be held to be exclusive, unless plainly and expressly so declared to be in the grant.” Civil Code (1910), § 3640. It is not pretended that the franchise granted to them to operate this ferry plainly and distinctly declares that it should be an exclusive one. There is nothing in the grant to show that it was intended to be an exclusive one. The ancient doctrine of the common law that the franchise of ferry, although not declared to be exclusive, is necessarily implied in the grant, is inapplicable to the local situation and political institutions of this country. Shorter v. Smith, 9 Ga. 517. “A grant to establish and operate a public ferry does
Not having an exclusive franchise, are the owners of this ferry entitled to compensation for loss of profits due to the erection of this free bridge by the State? The State has the right to erect bridges over its streams whenever and wherever the legislature may deem them necessary for the convenience of the public; and the right of eminent domain, by which the State is authorized to take private property for public use when the necessities of the country require it, is an inherent right of this State. The right to receive toll for the transportation of travelers and property over ferries operated over navigable rivers was, at the common law, a franchise of the crown. In this State it belongs to the people collectively. Young v. Harrison, 6 Ga. 130. In arriving at the value of the land taken by the State in this case for a public bridge, the element of value arising from the grant and operation of a franchise to the owners to operate a ferry is not to be taken into account. Where the grant is not by its terms exclusive, the legislature is not precluded from granting a similar franchise or from authorizing the construction of a rival way, which may greatly impair or even totally destroy the value of the former grant. So the State is not precluded, by granting a franchise of ferry, from constructing a rival highway and bridge which will greatly impair or even totally destroy the value of the ferry franchise. In Shorter v. Smith, supra, this court said: “The legislature or the inferior court
The construction of such rival way and bridge is not such a taking of the land pr franchise of the owners of the ferry as will entitle them to compensation. 20 C. J. 704 (§ 159) b. “It is competent for the legislature, after granting a franchise to one person, which affects the rights of the public, to grant a similar franchise to another person, the use of which shall impair, or even destroy, the value of the first franchise, although the right so to do may not be reserved in the first grant.” Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44. A grant of a ferry franchise to meet the public convenience is not an exclusive grant that will, on account of the prohibition against impairing the obligations of contracts, preclude the legislature from granting a bridge franchise detracting from its value; and where a franchise has been granted solely for public convenience, there can be no damage for its depreciating in value from the subsequent grant of a similar franchise. Dyer v. Bridge Co., 2 Porter (Ala.), 296 (27 Am. D. 655). In the absence of express provision in the charter of a turnpike and ferry company that no competing turnpike, ferry, or bridge shall be erected near by, a grant to a county of the right to construct a rival bridge and turnpike does not impair the obligation of a contract, though it
When the State grants a franchise that is not in its terms exclusive, it may subsequently grant a competing franchise that may utterly destroy the value of the first franchise, without incurring any obligation to make compensation. Where the holder of a franchise has no contract with the State that he shall have a monopoly, the exclusive privilege which he has been fortunate enough to enjoy before a rival is chartered is not property in the constitutional sense; and the owner is not entitled to compensation when such privilege is taken away. 10 E. C. L. 76, § 67; Charles River Bridge v. Warren Bridge, 11 Peters, 420 (9 L. ed. 773); LaFayette Plank Road Co. v. New Albany &c. R. Co., 13 Ind. 90 (74 Am. D. 246); Clarksville &c. Turnpike Co. v. Montgomery County, 100 Tenn. 417 (45 S. W. 345, 58 L. R. A. 155); Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh (Va.), 42 (36 Am. D. 374). '“In proceedings to condemn land for highway purposes, the fact that the opening of the new highway across a creek will divert travel from the ferry of a landowner, the landing of which is located on ground not taken, does not entitle the landowner to consequential damages based on such injury.” Board of Supervisors v. Hasbrouck, 215 App. Div. 147 (213 N. Y. Supp. 337). “Loss arising from the competition of the condemning party does not constitute an element of damage, and the same is true of loss arising from increased competition on the part of others growing out of the use to which the condemned land is to be put.” 20 C. J. 781 (§ 234) c. '“In proceedings to condemn land, loss arising from the competition of the condemning party by means of the land taken is not an element of the compensation to which the landowner is entitled.” Philadelphia &c. Ferry Co. v. Inter
In Richmond &c. Turnpike Road Co. v. Rogers, 62 Ky. 135, it was held: “1. In condemning land for a bridge across the Kentucky river, the jury can not allow to the proprietor of the land damages for any injury resulting to his ferry from the construction of the bridge. 2. In such cases the proprietor is entitled to the value of the land actually taken, and compensation for any incidental or collateral damage which the taking of it will produce to his other land.” In White River Turnpike Co. v. Vermont Central R. Co., 21 Vt. 590, it was said: “It is also settled that where there has been a legislative grant to a private corporation to erect a bridge, turnpike, or other public convenience, which is not in its terms exclusive, there is no constitutional obligation on the legislature not to grant to a second corporation the right to erect another bri4ge or turnpike for a similar purpose, to be constructed so near the former as. greatly to impair^ or even to destroy, the value of the former,' — and this without making compensation to the first corporation for the consequential injury.” “The grant to a corporation of the right to erect a toll-bridge across a river, without any restriction as to the right of the legislature to grant a similar privilege to others, does not deprive a future legislature of the power to authorize the erection of another toll-bridge across the same river so near to the first as to divert a part of the travel -yhich would have crossed the river on the first bridge if the last
But it is'insisted that this holding is in conflict with certain provisions of the Code and certain decisions of this court. In the first place it is urged that this holding conflicts with section 688, which is as follows: “In estimating the value of land when taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.” The Code section does not sustain the contention. It means that, in estimating the value of land taken for this right of way and bridge-site, the jury should not be restricted to its agricultural or productive qualities; but the value of this land for all purposes should be considered. It does not mean that in estimating the value of the laird so taken the jury could take into consideration the losses arising from the operation of a ferry of the owners, due to competition springing from the use of this bridge by the traveling public. It is further insisted that this holding conflicts with section 781, which is as follows: “In determining the value of land taken for a bridge, its prospective value as a bridge-site, and its present value as a ferry, if one is in use, may be taken into calculation.” This principle is not applicable to the question which we are considering. The State is seeking to take land for a right of way and for a bridge, and its prospective value as a bridge-site and its present value as a ferry, if one was in use, should be taken into calculation. This does not mean that the value of another ferry-site and profits arising from the operation of such ferry
Again, it is urged that the contrary is held in Dougherty County v. Tift, 75 Ga. 815. In the first place, the opinion in that case was not by a full bench, which then consisted of three Justices. One of them was disqualified. Chief Justice Jackson concurred specially, and stated that he “ could not concur in all the reasoning of Justice Blanford,” who wrote the opinion of the court. If we can consider the proposition laid down in the second headnote of this case as that of the two Justices who presided, and not the individual opinion of the Justice who wrote the opinion, the opinion in that case is not binding as a precedent for any proposition therein laid down. Furthermore, the opinion in that case is not authority for the proposition that where land is taken for a public highway and bridge over a stream, the owners are entitled to have the diminution or destruction of the profits of their ferry, due to the erection of the bridge, considered in determining the value of the property taken by the State for its highway and bridge, when the franchise of the owners to operate the ferry is not exclusive. Again counsel for the landowners rely upon the decision in Mitchell County v. Hudspeth, 151 Ga. 767 (supra), for the proposition that the compensation claimed by the landowners should be allowed. The decision in that case does not support the proposition for which counsel for the eondemnees contend. When properly construed, that decision is not in conflict with what we hold; but if we held otherwise, that would make it in conflict with the former decisions of this court. It is to be noted that the court in rendering the decisions in Dougherty County v. Tift and Mitchell County v. Hudspeth made no reference to the decision in Shorter v. Smith.
The Court of Appeals held that the damages awarded by the jury were so small as to justify the inference of gross mistake or undue bias; and for this reason that court set aside the verdict. This conclusion was based upon the ground that the verdict in each case “shows on its face that the value of the land for ferry purposes 'and its value as a bridge-site were not taken into consideration by the jury.” In this we think that court was in error, in view of the ruling made above, that the landowners were not entitled to compensation for loss of profits from their ferry arising from the construction of this public bridge. If the jury could
If the proposition announced by the Court of'Appeals in the headnote to its decision is to be construed to mean that compensation should be allowed the owners of this ferry for loss of profits arising from its operation due to the erection of this public bridge, then such ruling is erroneous in view of the rulings made in the second division of this opinion.
The ruling made in headnote 6 does not require any elaboration.
Judgment reversed.
Dissenting Opinion
I dissent from the judgment of the majority in this case, reversing the judgment of the Court of Appeals. This was a condemnation proceeding, brought by the State Highway Board of Georgia under the Civil Code (1910), § 5206, against J. Clyde Willcox and I. L. Cook, for “the condemnation of certain lands for a right of way for a State-aid road, and for material to be used in constructing and building the road.” The principal object of the condemnation proceedings was to secure a bridge-site across the Ocmulgee river, with abutments therefor and approaches thereto on the land of the defendants. The parties to the condemnation proceedings agreed to, and did, submit to the jury, as the sole issite to be tried, the value of the land sought to be condemned. The evidence before the jury tended to show that on the lands sought to be condemned the defendants had a legal franchise to operate, and did operate, a public ferry across the Ocmulgee river, a navigable stream; that they charged toll to the public for
In view of the pleadings and the evidence, the verdict awarding the plaintiffs such a pitifully small amount of damages for the land taken for a bridge-site is sufficient to “shock the moral sense,” and I can well see how the Court of Appeals should decide to send the case back for another hearing. Civil Code (1910), § 4399; Dougherty County v. Tift, 75 Ga. 815(3); Anglin v. Columbus, 128 Ga. 469 (57 S. E. 780). The small amount allowed the plaintiffs is a virtual confiscation of plaintiffs’ property, and in violation of the due-process clauses of the State and Federal constitutions.
In the majority opinion in this case it is stated that there is no conflict between .what is ruled in the three cases just cited, “properly construed,” and the present case; but to this I can not agree. If they are not in conflict, why attack them so vigorously? The present case is right in the teeth of those decisions, which lay down the correct rule in cases like the present. The Harrison case has stood unreversed for over three-quarters of a century, and has been a guide for bench and bar since its rendition. It is nowhere insisted by plaintiffs that they have the exclusive right to a franchise to operate a ferry on their own land, or that similar franchises may not be granted to others by condemnation proceedings and license, but merely that the State can not condemn their land without paying just and adequate damages, and considering every element going to make up those damages. Civil Code (1910), §§ 688, 781, are as follows: “In estimating the value.of land when taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.” “In determining the value of land taken for a bridge, its prospective value as a bridge site and its present value as a ferry, if oné is in use, may be taken into the calculation.” Our own code and decisions lay down the rule for estimating damages in cases' like the present, and we do not have to resort to outside jurisdictions to find a rule for such purpose. The language of our code