Smith, C. J.
(after stating the facts). The franchise of keeping a public ferry, and demanding toll for transportation, resides in the State, and is so incident to riparian ownership, that it can ,be granted to none others than those who own the land at one or the other of its terminal connections, unless such proprietor or proprietors refuse to exercise it; when it may be conferred upon another, who can only obtain the right to use the soil for the purpose, by making compensation, and this even when those termini are public roads.
Pipkin
v.
Wynn,
2 Dev., 402. This right to demand tolls in, operating a ferry, sanctioned' by the ■county authorities, with whom the power to establish it is depos-
ite.l, exists at the common law, and every subtraction from its. profits, by carrying its customers over the stream, for or without charge, is an injury for which an action will lie. It is the diminution in the number of oust'' mera that would use the ferry, but for the interference, and reduction of tolls, which measure the-damages recoverable against the wrong doer. So, by the common law, it was necessary to show “that the termini of the plaintiff’s ferry were between the points of such person’s departure and destination, as were in his route, and would have been passed by him, but for the defendant’s wrongful interference.” Pear-sow, Judge, in
Taylor v. W. & M. R. R.
Co., 4 Jones, 277.
To remove difficulties in the way of proofs, the General Assembly passed an Act by which it is provided, that if any unauthorized person shall pretend to keep a ferry, or to transport for pay
any person or his effects
within ten miles, reduced to five-by the amendatory Act of March 12, 1883, ch. 381, of any ferry (being on the same river or water), which is already, or hereafter-shall be, appointed, such person so pretending to keep a ferry, or-transporting any person or persons or their effects, shall forfeit and pay the sum of two dollars for every such offence, to the-nearest ferryman.” Revised Code, ch. 104, §31.
Substantially the same enactment is contained in The Code,. §2049.
The essential element involved in a ferry franchise, is the-exclusive right to transport persons, and horses and vehicles-with which they travel, as well as such personal goods as accompany them, from one shore to the other, over the intervening-water, for the toll.
A public ferry, then, says Abinger, C. B., in
Hussey v.
Field, 2 C. M. and R. (Excb.), 432, is a public highway of a special description, and its termini must- be in places where the public have rights, as towns or vills, or highways leading to towns or vills.”1 An invasion of this exclusive right, is not only réstrained by the statutory prohibition against the erection and operation of another ferry, but the transportation.-for pay, of persons or their-
effects, that is, as we understand the latter word, the accompanying personal goods under their direct control, is forbidden within the prescribed distance above and below. The establishing of a new competing ferry, is absolutely disallowed, while other methods of transportation become penal, only when compensation is charged.
The defendants, according to the plaintiff’s own showing, convey no persons for toll, and charge only for freight carried up and down the river, between the railroad and the numerous landings above, some even in the State of Virginia. They in no proper sense maintain a ferry, nor is their business of the same nature, even assuming the plaintiff's exclusive franchise to extend to and embrace the carriage of freight, as such, and as a separate and independent article of commerce. The defendants exercise the common right to use a navigable water, which unites two States, without the special concession of the State or county authorities.
“It does not follow,” we quote again from the opinion of Lord Abinger, “from this doctrine,” (the right of a ferry proprietor to be protected against an unlawful interference with his franchise by near and competing ferries), “that if there be a river passing by several towns or places, the existence of a franchise of a ferry over it, from a certain point on one side to a point on the other, precludes the King’s subjects from the use of the river,
as a public highway,
from or to all the towns or places upon its banks, and obliges them upon all occasions, to their own inconvenience, to pass from one terminus of the ferry to the other.”
Not unlike language is used by the Supreme Court of the United States, Swayne, Justice, delivering' the opinion, in the elaborately argued and well considered case of
Conway
v.
Taylor,
1 Black 603. There, a ferry franchise was possessed by a riparian proprietor on the Kentucky shore, to run a ferry across the Ohio river at Newport, and in that State, as here, there were statutory prohibitions against the establishment of other ferries within one and a half miles over that river, and within a mile
upon any other stream, nor was any new ferry to be granted within a city or town, unless required -by an accumulation of business, to which the afforded facilities were inadequate. In reference to the rights acquired under the authority of Kentucky, to run the ferry and transport thence to the opposite river bank in Ohio, without the correlative right to do this from the latter shore, the Court say:
“
Those rights give them no monopoly, under all circumstances, of all commercial transportation from the Kentucky shore. They have no right to exclude or restrain those then prosecuting the business of commerce, in good faith, without the regularity or purposes of ferry trips, and seeking in no wise to
interfere
with the enjoyment of their franchise.”
In
McRee
v.
W. & R. R. Co.,
2 Jones, 186, the colonial legislature authoi’ized the construction of a bridge over the North East branch of the Cape Fear river, and forbade the keeping of any ferry, or the building of any bridge, or the setting any person or persons, carriages, cattle, hogs or sheep, over the river for fee or reward, within six miles of its location. The charter of the defendant company authorized the construction of a railroad over the tract of country which made necessary a pass-way over the river, and within the six miles mentioned. The action was for the penalty given for a violation of this conferred privilege, and the Court held, that if a construction was to be put upon the enactment, which would arrest all improved future modes of transportation, demanded by increased wealth, population and business, the monopoly would be in antagonism to fundamental principles, and “contrary to the genius of a free State.” Bill of Rights, §§22 and 23;
Washington Toll Bridge Co.
v.
Commissioners.,
81 N. C., 491.
But the defendants are in the exercise of a common and undelegated right, to use the waters of a navigable river as a highway, in the carriage of goods, not primarily in the crossing, as a ferry is operated, from shore to shore, and between fixed landing places, but up and down the stream, there being a single
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Smith, C. J.
(after stating the facts). The franchise of keeping a public ferry, and demanding toll for transportation, resides in the State, and is so incident to riparian ownership, that it can ,be granted to none others than those who own the land at one or the other of its terminal connections, unless such proprietor or proprietors refuse to exercise it; when it may be conferred upon another, who can only obtain the right to use the soil for the purpose, by making compensation, and this even when those termini are public roads.
Pipkin
v.
Wynn,
2 Dev., 402. This right to demand tolls in, operating a ferry, sanctioned' by the ■county authorities, with whom the power to establish it is depos-
ite.l, exists at the common law, and every subtraction from its. profits, by carrying its customers over the stream, for or without charge, is an injury for which an action will lie. It is the diminution in the number of oust'' mera that would use the ferry, but for the interference, and reduction of tolls, which measure the-damages recoverable against the wrong doer. So, by the common law, it was necessary to show “that the termini of the plaintiff’s ferry were between the points of such person’s departure and destination, as were in his route, and would have been passed by him, but for the defendant’s wrongful interference.” Pear-sow, Judge, in
Taylor v. W. & M. R. R.
Co., 4 Jones, 277.
To remove difficulties in the way of proofs, the General Assembly passed an Act by which it is provided, that if any unauthorized person shall pretend to keep a ferry, or to transport for pay
any person or his effects
within ten miles, reduced to five-by the amendatory Act of March 12, 1883, ch. 381, of any ferry (being on the same river or water), which is already, or hereafter-shall be, appointed, such person so pretending to keep a ferry, or-transporting any person or persons or their effects, shall forfeit and pay the sum of two dollars for every such offence, to the-nearest ferryman.” Revised Code, ch. 104, §31.
Substantially the same enactment is contained in The Code,. §2049.
The essential element involved in a ferry franchise, is the-exclusive right to transport persons, and horses and vehicles-with which they travel, as well as such personal goods as accompany them, from one shore to the other, over the intervening-water, for the toll.
A public ferry, then, says Abinger, C. B., in
Hussey v.
Field, 2 C. M. and R. (Excb.), 432, is a public highway of a special description, and its termini must- be in places where the public have rights, as towns or vills, or highways leading to towns or vills.”1 An invasion of this exclusive right, is not only réstrained by the statutory prohibition against the erection and operation of another ferry, but the transportation.-for pay, of persons or their-
effects, that is, as we understand the latter word, the accompanying personal goods under their direct control, is forbidden within the prescribed distance above and below. The establishing of a new competing ferry, is absolutely disallowed, while other methods of transportation become penal, only when compensation is charged.
The defendants, according to the plaintiff’s own showing, convey no persons for toll, and charge only for freight carried up and down the river, between the railroad and the numerous landings above, some even in the State of Virginia. They in no proper sense maintain a ferry, nor is their business of the same nature, even assuming the plaintiff's exclusive franchise to extend to and embrace the carriage of freight, as such, and as a separate and independent article of commerce. The defendants exercise the common right to use a navigable water, which unites two States, without the special concession of the State or county authorities.
“It does not follow,” we quote again from the opinion of Lord Abinger, “from this doctrine,” (the right of a ferry proprietor to be protected against an unlawful interference with his franchise by near and competing ferries), “that if there be a river passing by several towns or places, the existence of a franchise of a ferry over it, from a certain point on one side to a point on the other, precludes the King’s subjects from the use of the river,
as a public highway,
from or to all the towns or places upon its banks, and obliges them upon all occasions, to their own inconvenience, to pass from one terminus of the ferry to the other.”
Not unlike language is used by the Supreme Court of the United States, Swayne, Justice, delivering' the opinion, in the elaborately argued and well considered case of
Conway
v.
Taylor,
1 Black 603. There, a ferry franchise was possessed by a riparian proprietor on the Kentucky shore, to run a ferry across the Ohio river at Newport, and in that State, as here, there were statutory prohibitions against the establishment of other ferries within one and a half miles over that river, and within a mile
upon any other stream, nor was any new ferry to be granted within a city or town, unless required -by an accumulation of business, to which the afforded facilities were inadequate. In reference to the rights acquired under the authority of Kentucky, to run the ferry and transport thence to the opposite river bank in Ohio, without the correlative right to do this from the latter shore, the Court say:
“
Those rights give them no monopoly, under all circumstances, of all commercial transportation from the Kentucky shore. They have no right to exclude or restrain those then prosecuting the business of commerce, in good faith, without the regularity or purposes of ferry trips, and seeking in no wise to
interfere
with the enjoyment of their franchise.”
In
McRee
v.
W. & R. R. Co.,
2 Jones, 186, the colonial legislature authoi’ized the construction of a bridge over the North East branch of the Cape Fear river, and forbade the keeping of any ferry, or the building of any bridge, or the setting any person or persons, carriages, cattle, hogs or sheep, over the river for fee or reward, within six miles of its location. The charter of the defendant company authorized the construction of a railroad over the tract of country which made necessary a pass-way over the river, and within the six miles mentioned. The action was for the penalty given for a violation of this conferred privilege, and the Court held, that if a construction was to be put upon the enactment, which would arrest all improved future modes of transportation, demanded by increased wealth, population and business, the monopoly would be in antagonism to fundamental principles, and “contrary to the genius of a free State.” Bill of Rights, §§22 and 23;
Washington Toll Bridge Co.
v.
Commissioners.,
81 N. C., 491.
But the defendants are in the exercise of a common and undelegated right, to use the waters of a navigable river as a highway, in the carriage of goods, not primarily in the crossing, as a ferry is operated, from shore to shore, and between fixed landing places, but up and down the stream, there being a single
stopping place within the prescribed limits. The right to use navigable waters, is superior to any incident to the ownership of the shores, and this, even when enlarged by the grant of an exclusive ferry or other franchise annexed to them.
Lewis
v.
Keeling,
1 Jones, 299.
Navigable waters, constituting highways, are not ascertained here, as they are in England, an island accessible to ocean tides, by the extent of their ebb and flow, but by a more practical test of their capacity to float boats used as instruments of commerce, in the interchange of commodities, and large enough for the purpose. Such waters lose not their navigibility, because intercepted by falls, when above and below them, the waters can be thus used for the purpose of commerce for long distances. Under such circumstances, they remain highways for common use. Such is the condition of many of our large rivers, and was of the Ohio itself, near the city of Louisville, until the impediment was overcome by works erected there.
The defendants’ boats, with capacity to transport twenty bales of cotton, or 9,000 pounds of freight each, ascend and descend the river for more than forty miles, passing the State boundary, and as a common carrier, receiving and delivering goods at places along the route, and thus transferring the products of the farm to the railroad, and meanwhile, bringing supplies to the farmers, touching at a single point in the prescribed distance, and this point two miles further up the river.
Can the maintenance of such a line of transportation, be deemed an exercise of rights, intended to be inhibited by the restraining statute? Is it in any proper sense, an invasion of the plaintiffs’ franchise? Does the statute mean to deny the facilities possessed by those who find Mason’s landing a convenient point of shipment, and compel them to carry, by wheels, what they may raise, over the needless space of two or more miles to the plaintiffs’ ferry, in order that they may have the tolls for ferrying it over? We do not so interpret the prohibitory legislation. The essential element in a ferry, is the transportation over interrupting water — a crossing from shore to
shore, at points conveniently opposite, and forming connection with thoroughfares at each terminus. A ferrry is defined by Mr. Webster, in words borrowed from legal authorities, to be, “a liberty to have a boat for passage upon a river, for the carriage of horses and men for a reasonable toll,” adding, “It is usually to cross a large river.” Tomlin’s Law Diet.
It has now a wider application, and has been sometimes used to designate transportation over a wide expanse of water, the essential idea of passing from
one shore to an opposite shore
being retained.
We are not disposed to hold, upon the evidence, and with the defendant’s denial that they carry any person in their boats for fee or reward, that they are invading the franchise possessed by the plaintiffs, or any just right derived under it.
The action, moreover, is not alone for remuneration for loss, in damages, but for the recovery of penalties for multiplied alleged offences, and the aid of the Court is sought as an ancillary remedy. But a court of equity leaves one pursuing this course, to his strict legal rights, and withholds its aid. One seek-equity, must do equity, and be content with full indemnity for actual loss sustained. Thus, a debtor charged with usurious interest, will be, as a condition of relief, required to pay the debt he owes, with legal interest, or if the bill be filed by the creditor, he must forego his demand for the penalty, and be satisfied with such compensation as measures his loss, or is the just amount of his claim.
“It is against the general principles of equity,” remarks Story, “to aid in the enforcement of penalties or forfeitures.” 2 Story Eq. Jur., §§1319 and 1494.
This rule of action is not abrogated by the union in one tribunal of the functions formerly divided between two, while each exercise those peculiar to itself, but the underlyings principles of action are the same and unchanged.
There is error in the ruling, and this will be certified to the Court below.
Error. Reversed.