Anderson v. Chesapeake Ferry Co.

43 S.E.2d 10, 186 Va. 481, 1947 Va. LEXIS 172

• Court: Supreme Court of Virginia
• Decided: June 9, 1947
• Docket: Record No. 3232
• Status: Published

Opinions

Buchanan, J.,

delivered the opinion of the court.

This suit presents a question as to the proper measure of compensation for the use of the Chesapeake Ferry Company’s properties which were taken over and operated by the State Highway Commissioner under an Act of the General Assembly, approved February 22, 1946 (Acts 1946, ch. 39, p. 59; Code, 1946 Supplement (Michie), sec. 2072(33) ), which is copied in the margin.¹

At the time of the passage of this Act the ferry company was the owner of two ferries across Hampton Roads, one from Wiloughby Spit, in Norfolk, to Old Point Comfort, and the other from Pine Beach, in Norfolk, to Newport News. It had been operating these ferries for several years, but their operation had been suspended for some two weeks prior to February 22, 1946, due to a strike by its employees. These ferries constituted important links in the State Highway System, and this suspension of operation had naturally resulted in inconvenience and hardship to the public. To prevent this public inconvenience and hardship during the period of such labor disputes, the Act was passed authorizing the State Highway Commissioner, with the approval of the Governor, to exercise the power of eminent domain and acquire for temporary use and operation any ferries, with their facilities and equipment, when the owners or operators were unable or unwilling to operate them.

February 22, 1946, the day the Act v/as approved, the State Highway Commissioner filed his petition alleging that for two weeks or longer the operation of said ferries had been suspended because of the inability or unwillingness of the ferry company to operate them, and that such suspension constituted a serious obstruction to the use and operation of the State Highway System, as well as serious inconvenience to the general public; that the Commissioner had so notified the ferry company and, with the approval of the Governor, and under the authority of the said Act, had requested the delivery to him and his agents of possession of said ferries and the facilities and equipment used in connection with their operation, but the ferry company had failed and refused to comply with said request. The petition asked for a rule against the ferry company to show cause why said properties should not be delivered as requested.

The rule was issued, the ferry company filed its answer admitting the allegations of the petition, and on February 25, 1946, the court entered its order, finding, among other things, that the operation of the two ferry lines had been suspended for two weeks or longer by the inability or unwillingness of' the ferry company to operate them, resulting in serious obstruction to the use and operation of the State Highway System, and decreeing that the ferry company deliver possession of said ferries, with all facilities and equipment, docks, wharves and the property necessary or proper in connection with the operation of same. The Commissioner was ordered, in conjunction with the ferry company, to make a complete inventory of all such property with a brief description of its then condition, and give the ferry company receipt therefor on receiving possession.

The order further directed that, the Commissioner and the ferry company, within thirty days, agree on “a reasonable, proper and lawful compensation” (the language of the Act) for the use of said ferries and other property, and if they failed to agree, either party might file a petition to have the question judicially determined.

October 14, 1946, nearly eight months later, the ferry company filed its petition stating that it and the Commissioner had made several bona fide efforts to agree on compensation, but had been unable to do so, and asked the court to determine the question in accordance with the contention of the ferry company, that the compensation contemplated and provided for by the Act was the net profits of the operation, ascertained by deducting from gross revenues the cost of operation and maintenance and reasonable overhead charges. The petition prayed that the court proceed, without a jury, to hear evidence and argument and render judgment as to the basis of past and future compensation, and to fix the amount, if necessary, or refer to a commissioner such questions as considered proper, as in chancery proceedings, as provided by the Act.

October 17, 1946, the Commissioner filed his answer admitting the allegations of the petition as to what had occurred, but taking issue on the method of compensation contended for by the ferry company, and averring that when he took possession of the ferries the ferry company had not operated them for a period of approximately three weeks, due to labor disputes with its employees, and that during that time the properties were idle and productive of no revenue to the ferry company, but a burden to it because of administrative and maintenance expenses; that under the provisions of the Act the ferry company was entitled to the return of the possession of its properties at any time it was able and willing to resume their operation, but that due to said labor disputes the ferry company had at all times been, and still was, unable to assume its lawful duty and obligation of rendering such ferry service, and that if the Commissioner had not, in the exercise of the power of eminent domain, operated said properties, the ferry company would not have received any return therefrom, but would have suffered material loss on account of the maintenance cost and the expense of protecting the properties.

The answer further stated that in operating the ferries the State had assumed, and was still being subjected to, risks of loss from liabilities arising under the State Workmen’s Com-' pensation Law and from physical damage to the ferry properties as the result of hazards incident to their operation; that the revenues from the operation of the ferries by the Commissioner had produced funds over and above operating and maintenance costs which would be far in excess of a reasonable, proper and lawful compensation for the use of the ferries and other properties; and that such reasonable, proper and lawful compensation for the use of the ferries and other properties could be determined only by allowing a fair rental charge, not to exceed six per centum interest upon the value of the properties, plus a proper allowance for wear and tear resulting from the use of said properties.

No evidence was introduced but the matter was heard October 26, 1946, on the petition of the ferry company, the answer of the Commissioner and argument of counsel, and the court then entered a decree adopting the contention of the ferry company and adjudicating that the compensation contemplated and provided for by said Act “is to be determined, both as to past and future compensation, by an accounting between the parties hereto in which the gross revenues resulting from the operation of said ferries by the State Highway Commissioner shall be stated and from which there shall be deducted the reasonable and proper costs of operation and maintenance, including therein any reasonable out-of-pocket expenditures made on account of said operation and maintenance by said Commissioner, together with any reasonable overhead charges incurred or paid by him and allocable to said operation, and that after deducting said amounts from said revenue, the balance remaining shall constitute a reasonable, proper and lawful compensation for the use of the petitioner’s ferries and other properties by the State Highway Commissioner, pursuant to said Act and the provisions of the Constitution of the State of Virginia and of the United States in this and similar cases.”

In other words, the court held that the profits made by the taker on the property, taken under eminent domain, were the measure of just compensation for the taking. In our view, that holding is contrary to the principles long estabfished and used in ascertaining the just compensation required by the Fifth Amendment to the Federal Constitution and section 58 of the Constitution of Virginia to be paid when private property is taken for public use; and works a result that was not intended by the Act, and that is inequitable under the circumstances shown by the record.

No constitutional question is involved and we are concerned only with the construction or application of the Act, the validity of which is in no wise assailed or drawn in question.

It is to be remembered that the ferry company was not a going concern at the time of the taking. The ferries were then producing nothing for their owner, had not done so for more than two weeks, and would not and could not earn anything for the ferry company so long as the strike continued.

The profits that have been made by the Highway Commissioner do not represent money that has been taken away from the ferry company. It is money that has been made by the Highway Commissioner by using the power of the State to quicken into action an idle enterprise. It would have remained idle and without any capacity to earn for its owner except for the exercise of the State’s authority. That authority should not be used to make money for the owner that the owner could not have made for itself.

The Highway Commissioner took over the property to operate it in the public interest because the owner was unable or unwilling to do so. The owner could have it back just as soon as it was able and willing to operate it. That is what the Act provides. Its use by the Highway Commissioner was only for the period during which the owner could not or would not operate it and, therefore, was only for a period when the property could not produce any earnings for the owner.

The Act provides that the amount to be paid to the owner for that use shall be “reasonable, proper and lawful compensation.” That is, and could be, nothing more or less than the just compensation guaranteed by the Federal and State Constitutions to be an inseparable incident of the exercise of the power of eminent domain.

The general rule, adhered to by this court, is that just compensation is pay to the owner for what he loses (29 C. J. S., Eminent Domain, secs. 136, 160, pp. 968, 1028; Burger v. State Female Normal School, 114 Va. 491, 77 S. E. 489; Chairman of Highway Comm. v. Fletcher, 153 Va. 43, 149 S. E. 456); the full and perfect equivalent for what is taken (Pruner v. State Highway Com'r, 173 Va. 307, 4 S. E. (2d) 393).

Said Mr. Justice Holmes in Boston Chamber of Commerce v. Boston, 217 U. S. 189, 30 S. Ct. 459, 54 L. Ed. 725, the Constitution “merely requires that an owner of property taken should be paid for what is taken from him. It deals with persons, not with tracts of land. And the question is, What has the owner lost? not, What has the taker gained?”

This principle was repeated and elaborated by Mr. Justice Lurton in the leading case of United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53, 33 S. Ct. 667, 57 L. Ed. 1063, in this language:

“ ‘The requirement of the 5th Amendment is satisfied when the owner is paid for what is taken from him.’ * * * * The value should be fixed as of the date of the proceedings, and with reference to the loss the owner sustains, considering the property in its condition and situation at the time it is taken, and not as enhanced by the purpose for which it was taken.” (33 S. Ct. 677).

“That .the property may have to the public a greater value than its fair market value affords no just criterion for estimating what the owner should receive. * * * * But in a condemnation proceeding, the value of the property to the government for its particular use is not a criterion. The owner must be compensated for what is taken from him; but that is done when he is paid its fair market value for all available uses and purposes.” (33 S. Ct. 678-9).

“The government’s obligation is to put the owners in as good position pecuniarily as if the use of their property had not been taken.” Phelps v. United States, 274 U. S. 341, 47 S. Ct. 611, 612, 71 L. Ed. 1083.

“The compensation to which the owner is entitled is the full and perfect equivalent of the property taken. Monongahela Nav. Co. v. United States, 148 U. S. 312, 327, 13 S. Ct. 622, 37 L. Ed. 463. It rests on equitable principles and it means substantially that the owner shall be put in as good position pecuniarily as he would have been if his property had not been taken.” Seaboard Air Line R. Co. v. United States, 261 U. S. 299, 43 S. Ct. 354, 356, 67 L. Ed. 664.

In Olson v. United States, 292 U. S. 246, 54 S. Ct. 704, 78 L. Ed. 1236, Mr. Justice Butler stated the same principle in these words:

“He (the owner) is entitled to be put in as good a position pecuniarily as if his property had not been taken. He must be made whole but is not entitled to more.” (54 S. Ct. 708). “* * * But the value to be ascertained does not include, and the owner is not entitled to compensation for, any element resulting subsequently to or because of the taking.” (54 S. Ct. 709).

What was taken by the Highway Commissioner here was not the property but the temporary use of it. All the ferry company is entitled to is pay for what was taken at the time it was taken, not for what the taker made out of it after it was taken. What the Highway Commissioner made from the use of the property is not what the owner would have made if the property had not been taken.

The result of the court’s holding is to pay the ferry company, not a just compensation for what was taken from it, but a compensation which was, in very important part, created by the use of the State’s sovereign power, not available to the ferry company, and without which no profit at all would have been made. To pay the company on that basis includes in its compensation the value of the State’s power to operate, and that is an element of value it is not entitled to have.

The situation here is unusual. The properties of the ferry company have been taken over and' operated by the State under its power of eminent domain because of the inability or unwillingness of the ferry company to operate. The taking has been for a period during which that inability or unwillingness continued. The situation is new, but the principles for the solution of the question involved are old.

The quest is to find what is just compensation to the ferry company for what has been taken from it. If the taking were permanent, just compensation would be the fair market value of all that was taken. The fact that the taking is temporary does not require just compensation for the taking to be based on new principles. As just compensation for a permanent taking is fair market value, so just compensation for temporary talcing can only be a fair rental value.

The measure of fair rental value could not be the profits made by the taker. In many cases and under different conditions there might well be no profits. The application of such a principle would then necessarily result in a taking without any compensation. If there had been no profits in this case, the State could not maintain the position that it should then pay the owner nothing for the taking. It would have to pay the owner just compensation even if there had been a loss. In that case, the measure of that compensation could only be fair rental value.

In no case to which we have been referred or that we have found have the profits of the taker been held to be the measure of just compensation either for a permanent or for a temporary taking. At most they have been considered only as an element in determining fair market value or fair rental value, which is the universal measure of just compensation.

Egan v. Philadelphia, 108 Pa. Super. 271, 164 A. 813, holds: “The principles involved and governing are the same whether there be a permanent taking or one for temporary use only. In the former the fair market value is to be ascertained, in the latter, the fair rental value.” (p. 814).

In that case the city condemned land of the appellant for temporary use in connection with its sesqui-centennial exposition. The evidence was that the normal rental value was $75 a month, but the appellant offered evidence that the value was $1500 a month, based on the fact that the sesqui-centennial was directly across the street. The court held that this testimony was properly rejected, quoting Mr. Justice Holmes in New York v. Sage, 239 U. S. 57, 61, 36 S. Ct. 25, 60 L. Ed. 143, that “ ‘The city * * * is not to be made to pay for any part of what it has added to the land by thus uniting it with other lots, if that union would not have been practicable or have been attempted except by the intervention of eminent domain.’” (p. 815).

See also, Louisville, etc., R. Co. v. R. E. E. DeMontluzin Co., Inc., 166 La. 211, 116 So. 854; In re Condemnation of Lands for Military Camp, 250 F. 314.

In Pierce v. Platte Valley Public Power, etc., Dist., 143 Neb. 898, 11 N. W. (2d) 813, the land taken for temporary use was occupied by a tenant under a contract reserving rent of one-half of the crops. The court there held that just compensation for the temporary use was the value of the crops that “could and would” have been grown on the land. That, of course, was what was taken from the owner. The profits made by the Commissioner in operating these ferries are not what “could and would” have been made by the ferry company during the period of the use, because the company could not and would not have made anything during that period.

In Prince Line, Ltd. v. United States, 283 F. 535, fair rental value was recognized as the proper measure of compensation for the temporary possession and use by the government of certain piers. The question at issue was whether fair rental value was to be determined under normal market conditions as claimed by the government, or under abnormal conditions resulting from the war. The government did not need one of the piers and rented it out at the high prevailing rental. It then offered to pay to the owner on the basis of what would have been a fair rental under normal market conditions. The court held that it should pay on the basis of what it had received, because that represented fair rental value available to the owner under the conditions actually prevailing, adding that “the constitutional authority of the government to take property and to render just compensation therefor means that the government should pay a fair valuation for that of which the party owning the property is deprived.” (p. 539).

See also, Cape Girardeau v. Hunze, 314 Mo. 438, 284 S. W. 471, 47 A. L. R. 25.

While the profits made by the Highway Commissioner are not the measure of just compensation to be paid the ferry company, evidence thereof will be admissible as bearing on the question of fair rental value. The answer sought is the fair market value of the right to use the properties of the ferry company, including its right to take tolls. The purchaser of that right would naturally consider what he could afford to pay under all the circumstances. Those circumstances would include the risks of operation, of further regulation of the tolls he could charge, as well as the necessity of meeting or compromising the demands of labor. He could not operate with the advantages possessed by the Commissioner. The tolls the Commissioner must charge are fixed by the statute under which he operates, and he has the advantage of another statute (Acts 1946, ch. 333) imposing a penalty on labor for striking while he is in charge.

In Olson v. United States, supra, this was said on the subject of just compensation (54 S. Ct. 708-9):

“Just compensation includes all elements of value that inhere in the property, but it does not exceed market value fairly determined. The sum required to be paid the owner does not depend upon the uses to which he has devoted his land but is to be arrived at upon just consideration of all the uses for which it is suitable. The highest and most profitable use for which the property is adaptable and needed or likely to be needed in the reasonably near future is to be considered, not necessarily as the measure of value, but to the full extent that the prospect of demand for such use affects the market value while the property is privately held ****’’

“Flowage easements upon these lands were not currently bought or sold to such an extent as to establish prevailing prices, at or as of the time of the appropriation. As that measure * * * is lacking, the market value must be estimated. In respect of each item of property that value may be deemed to be the sum which, considering all the circumstances, could have been obtained for it; that is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.”

This case also discusses Mississippi, etc., Boom Co. v. Patterson, 98 U. S. 403, 25 L. Ed. 206, and points out that the reason for holding in that case that the use of the property for log boom purposes should be considered on the question of compensation was because its availability for that use affected its market value.

In Richmond, etc., R. Co. v. Chamblin, 100 Va. 401, 41 S. E. 750, this is said (p. 406):

“It seems to be well established that damages to the trade or business of the land-owner are generally too remote to be a subject of damages, because they depend upon contingencies too uncertain and speculative to fie allowed. 6 Am. & Eng. Ency. Law (1 Ed.), 573.”

This case is cited in a note to Gauley, etc., R. Co. v. Conley, 84 W. Va. 489, 100 S. E. 290, 7 A. L. R. 157, where the annotator says (7 A. L. R. 164):

“With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings.”

But in the same note it is stated (p. 171):

“Where it appears that the property condemned is of such a nature that the profits derived from its use are the entire or chief source of its value, evidence of the amount of the profits is to be considered in determining the market value.” Many cases supporting the statement are cited.

In Lebanon, etc., Turnpike Co. v. Creveling, 159 Tenn. (6 Smith) 147, 17 S. W. (2d) 22, 65 A. L. R. 440, the court said:

“While we hold that net income, present or prospective, is not controlling, evidence thereof is altogether competent; the weight to be given such evidence as may be adduced being for the jury, in connection with all other material evidence.” (65 A. L. R. 448).

In an annotation to that case (65 A. L. R. 456) it is said: “As a general rule the courts accede to the view that income from property in the way of rents and profits is an element of consideration in arriving at the market value or measure of compensation to be paid for taking property in condemnation proceedings.”

Monongahela Nav. Co. v. United States, 148 U. S. 312, 13 S. Ct. 622, 37 L. Ed. 463 (cited in support of the rule, along with other federal and many state cases), is a leading case and is much relied on by appellee in its brief. But that case is not authority for the holding of the trial court that the profits made by the Commissioner are the measure of just compensation to the ferry company. Unlike these ferries, the property there taken was a going concern, and its owner was receiving tolls under a franchise. The court did not hold that the owner must be paid the tolls that the government would receive after the taking, but held that the right of the owner to charge tolls, an active right which the government took from the owner, must be considered in arriving at just compensation for the property taken. This sentence from the opinion (37 L. Ed. 472) is the essence of the holding in that case on the point involved here:

“If a man’s house must be taken, that must be paid for; and, if the property is held and improved under a franchise from the state, with power to take tolls, that franchise must be paid for, because it is a substantial element in the value of the property taken.”

United States v. General Motors Corp., 323 U. S. 373, 65 S. Ct. 357, 89 L. Ed. 311, 156 A. L. R. 390, involved a question of just compensation for the temporary use of a warehouse taken by the government, under the Second War Powers Act, from a tenant holding under a long-term lease. It was held that “The value of such an occupancy is to be ascertained, not by treating what is taken as an empty warehouse to be leased for a long term, but what would be the market rental value of such a building on a lease by the long-term tenant to the temporary occupier. The case should be retried on this principle. In so ruling we do not suggest that the long-term rental value may not be shown as bearing on the market rental value of the temporary occupancy taken.. It may be evidence of the value of what is taken but it is not the criterion of value in such a case as this.” (65 S. Ct. 361).

While the fair rental value of the ferry properties is the measure of just compensation for their use, the limitation of not to exceed six per centum upon the value of the properties, plus a proper allowance for wear and tear, proposed by the Commissioner, is an arbitrary limitation which should not be imposed in the absence of any facts from which it may be determined whether the result would represent fair rental value.

We are told in the Commissioner’s reply brief that it appears likely that the profits from the Commissioner’s operations for a year will be nearly $400,000 on properties which the ferry company has reported for taxation at a value of $240,000. As we have pointed out, there are elements in these profits which do not belong to the ferry company, and for which it is not entitled to compensation.

The fair rental value to which the ferry company is entitled is to be determined with reference to the value of its properties at the time of the taking, and their earning capacity under all the facts and circumstances existing at the time of the taking.

The appellee says this will be a task of great difficulty. With the information in hand, including the inventory required to be made when the Commissioner took charge, and the known results of his operations, the difficulty should not be extraordinary. But even so, that is not sufficient reason against applying the proper method to ascertain the reasonable, proper and lawful compensation required by the Act to be paid for the State’s use of the ferries. Moreover, the information obtained should be useful in the condemnation proceeding which we are told the State is preparing to institute to acquire the ferry properties.

If the application of that method results in profits to the State that the legislature did not expect to accrue, that is not the fault of the State. These profits result from tolls paid by the public for the use of the properties owned by the ferry company and operated by labor which the Act makes the agents and employees of the Commissioner, operating the ferries for the account of the State Highway Department. It is not inequitable for the Commissioner to retain for the benefit of the public such profits as remain after paying the ferry company just compensation for the use of its properties.

Rather would it be unjust under the circumstances to pay all profits to the ferry company, regardless of whether they exceed just compensation. To do so would make the Commissioner, contrary to the plain language and intendment of the Act, the agent of the ferry company, operating the ferries for the benefit of the ferry company and placing it in the happy position of having all to gain and nothing to lose by the Commissioner’s continuing to operate the ferries. So long as the properties remain in the hands of the Commissioner the tolls must remain the same. They are not subject to reduction by the regulatory authority, as they are when the ferry company is in possession, even though they produce a profit far in excess of a fair return on the investment.

Since the Commissioner has assumed control, the ferries are not to be returned to the ferry company until it is able and willing to operate them. If the ferry company could take all the profits, without having either to raise wages to end the strike, or to run the risk of a toll reduction, or to\ assume any other risks of operation, its willingness to take! back its properties might not arrive on winged feet. ' There I would be little incentive for it to try to settle its difficulties j with its employees. The result would be to require the employees to work for the profit of the company while they are nominally the employees of the State. The operation by the Commissioner, which has already extended well over a year, could in that case run quite far beyond the temporary use contemplated by the Act.

We reverse the decree appealed from and remand the cause to the trial court with direction to ascertain, in the manner provided by the Act, and according to the principles herein stated, the fair rental value of the ferry properties, to be paid as just compensation to the ferry company for their use.

Reversed and remanded.

1 Be it enacted by the General Assembly of Virginia:

1. Section 1. Definition.—As used in this act,

(a) The word “ferry” shall be construed as meaning any business or enterprise conducted for private profit in the normal course of which motor vehicles are transported by steamboats or other vessels- across any waters within the state under such circumstances that the operation of same serves or functions as a connecting link between highways which are a part of the State Highway System, and which service enables the continuation or resumption of travel by the operator of any such motor vehicle over said highways on the opposite side of said waters.

(b) The words “facilities and equipment” shall mean all personal property customarily used in operating a ferry, including steamboats and other vessels.

(c) “Docks and wharves” shall mean all docks, wharves, platforms, landing places, and approaches thereto and exits therefrom, and all buildings auxiliary or proximate thereto, customarily used in, or in connection with, the operation of any ferry.

Section 2. Whenever the owner or operator of any ferry, as defined in section one of this act, is unable for any reason to operate the same in accordance with the normal course of business of said ferry, or for any reason is unwilling to so operate same, the State Highway Commissioner (hereinafter called the “Commissioner”), in addition to the powers of eminent domain vested in him by section one of chapter three hundred and eighty of the Acts of Assembly of nineteen hundred forty, is hereby vested with the power of eminent domain, so far as same may be necessary, to acquire for temporary use in connection with the State Highway System any such ferry, the normal operation of which has been so impaired or suspended, together with all “facilities and equipment”, “docks and wharves”, or other property necessary or proper in connection with the operation of same. In no case shall the Commissioner exercise the power hereby conferred until such exercise is approved in writing by the Governor.

Section 3. Before entering into the possession of any such ferry or other property, the Commissioner shall notify the owner or operator of same that in his opinion the normal operation of said ferry has been so interrupted, curtailed, impaired, or suspended, as to result in a serious obstruction to the use and operation of the State Highway System, and that said Commissioner requests the delivery to him and his agents of possession of said ferry and other property which may be desired. Unless the owner or operator believes that the Commissioner is mistaken in his conclusion that the ferry service has been so adversely affected as asserted by him, said owner or operator shall forthwith deliver possession in accordance with said request. In the event of the refusal of such possession, upon application of the Commissioner any court of record of any county or city in which any terminal point of any such ferry is located, or the judge thereof, in vacation, shall issue a rule requiring such owner or operator to show cause why the said possession should not be delivered as requested. The rule shall be given preference over all other matters pending before said court. The said court or judge, after reasonable notice, shall hear the parties and determine as promptly as possible the question of fact relating to the service, if any, being rendered by the ferry and whether the facts require the delivery of said possession under the provisions of this act, and render judgment requiring or denying delivery of possession as the case may be.

Section 4. Upon delivery to him of possession of any such ferry and properties, it shall be the duty of the Commissioner, by and through his agents and employees, to operate the same for the account of the State Highway Department in such manner as will best meet and satisfy the public needs and facilitate the operation and use of the State Highway System. He shall collect the same charges, tolls or rates as were last customarily imposed by the ferry before delivery of such possession, and pay the same into the State treasury for credit to the highway funds.

Section 5. Whenever the owner or operator of any such ferry shall notify the Commissioner in writing, stating that he is in position to, and can and will resume operation and render normal ferry service, and. shall satisfy the Commissioner of the correctness of such statement, the Commissioner shall restore the possession of the ferry and all property so acquired by him to the said owner or operator upon his request. In the event the Commissioner refuses such restoration of possession, the owner or operator shall have the right to have a rule issued in the manner provided in section three hereof requiring the Commissioner to show cause why such possession should not be restored, and the court shall determine the matter as in said section provided.

Section 6. The owner or operator of said ferry shall be entitled to receive reasonable, proper, and lawful compensation for the use of the ferry and other properties by the State and shall be paid same out of the State highway funds in the State treasury. In the event the Commissioner and the owner or operator are unable to agree upon the amount of such compensation either party in interest may file a petition in any court mentioned in section three hereof for the purpose of having same judicially determined. The court shall, without a jury, hear such evidence and arguments of counsel as may be deemed appropriate and render judgment thereon, or may refer to a commissioner such questions as are considered proper and act upon the commissioner’s reports as in ordinary chancery proceedings. An appeal shall lie to the Supreme Court of Appeals from any final judgment of the court rendered under this section or under section five hereof.

Nothing in this act shall be construed to affect any ferry owned or operated by any municipality or county or jointly owned or operated by any municipality or county of this State.

2. An emergency exists and this act is in force from its passage.