The following opinions were delivered :
By Mr. Justice Sutherland.
The appellants are the proprietors of two toll bridges over the Cayuga Lake; the one over the broad waters of the lake between the villages of East and West Cayuga, the other over the - outlet about two miles north of the first. The respondents are an association of individuals, who, in 1826, under an act of the legislature passed 16th April, 1825, commenced the building and erecting of a free bridge over the same outlet, a little more than one mile north of the most northerly bridge of the appellants.
The appellants contend that by the acts under which their bridges have been erected, all other persons are prohibited from erecting any bridge over the Cayuga Lake or its outlet, at any place within three miles of either of their bridges, or at all events, within that distance of their bridge over the outlet. The respondents, on the contrary, maintain that the exclusive privileges of the appellants is limited to the distance [94]*94of three miles in each direction from their bridge between East and West Cayuga. It is admitted that the place where the respondents commenced their operations is more than three miles from that bridge, and about one mile only from the other.
The chancellor decided that the respondents were authorized to erect a free bridge at the place where they had commenced building the same; thereby affirming that the exclusive privilege of the appellants is restricted to three miles from their bridge across the lake from East to West Cayuga. Upon a careful examination of the case, I am of opinion, that the chancellor has given the true construction to the acts of the legislature under which the appellants claim.
It is obvious that neither the legislature nor the company contemplated the erection of more than one bridge under the acts of 1797 and 1799. The company could not have built two bridges at the same time, the one over the lake and the other over the outlet. They were to build a bridge over the lake or outlet, at such place as they thought proper. They had an unlimited discretion as to the original location ; but when that discretion was exercised and a bridge was built, their grant was located, and their exclusive privilege attached to the distance of three miles in each direction from that spot. It cannot admit of a doubt that the legislature had a perfect right, immediately after the first bridge was built in 1801, to have authorized the erection of another bridge at any point upon the lake or outlet, more than three miles distant from that bridge. What possible objection could have been raised against such an act 1 could it have been said that it interfered with any vested or even contingent right of the appellants 1 would the argument have been urged, that perhaps the bridge of the appellants might be destroyed, and then they might wish to rebuild it at some other placel I apprehend the answer would have been conclusive, that the rights of the appellants are fixed and ascertained; they have located their bridge; their grant is no longer ambulatory, and the right of the legislature is as perfect to authorize the erection of another bridge three miles and an half from that, or at the head, as the middle of the [95]*95lake; and they might have incorporated in this second grant the same prohibition as is contained in the act of 1799 against the erection of any other bridge within three miles of the last. If these positions are sound, it would seem necessarily to follow that the appellants had no right to rebuild or erect a new bridge after the destruction of their first bridge in 1809, at any other place than where that had stood. They derived all their rights and powers from their charter; whatever that gave them they were entitled to exercise, and what it did not give they had no right to, whether the legislature had"granted them to any other person or not. It is a fair test of the extent of their rights, therefore, to inquire whether an act, such as I have supposed, authorizing the erection of another bridge three miles and one rod from the first bridge of the appellants,-and prohibiting the erection of any other bridge within three miles from that, would have been valid. If it would, it would have been because the appellants had no vested rights incompatible with the provisions of such grant, and of course had no right, under any circumstances, to rebuild or erect a new bridge within three miles of the last. That such a grant would have been valid, appears to me too clear to admit of argument. When the company located their grant and erected their bridge, their situation and rights were precisely the same as though that place had been particularly specified in the charter; and I am therefore inclined to the opinion that they had no right to erect a new bridge at another place, under the authority which they possessed of rebuilding the old one. It must have been foreseen that when this bridge was built, the arrangements and improvements of the neighboring country would be partially affected by it; that villages would probably spring up at each extremity ; that turnpikes and other roads would be made with reference to it, which would be of no use to the public without the bridge. It was undoubtedly under the influence of considerations like these, that the legislature made it an express condition of the grant, that if the bridge should remain impassable for 30 days, or if carried away by the ice, should not be rebuilt in 18 months, the charter should be forfeited, so that another company might be created for the same pur» [96]*96pose, or a free bridge erected by those who had an interest jn t|ie sup,jeCt, and had invested their capital in local improvements, upon the faith that this means of communication would be preserved. I-do not think the bridge erected by the company over the outlet in 1809 was a rebuilding of their first bridge, within the meaning of the charter. If it was not, none of the peculiar privileges conferred by that charter could attach to it, although the charter was never formally avoided.
But admitting that the company had a right to rebuild at any place, within three miles either north or south from their first bridge, I should still hold that the restricted limits were to be measured from the place where the first bridge was erected. The language of the 2d section of the act of 1799, which contains this prohibition, is very explicit; it prohibits the establishment of any other bridge or ferry within three miles of the place where the said bridge should be erected by the company; that is, the bridge to be erected under the act of 1799. Suppose the prohibition had been contained in a separate act, passed after the bridge had been built, and had forbidden the erection of any other bridge within three miles of the place where the said company had built their bridge ? It would hardly be contended that under such a provision, any subsequent act of the company could extend or change the limits to which the prohibition applied.
When the circumstances under which the act of 1812 were passed are considered, I think no inference is to be drawn from it, favorable to the claims of the appellants. It confirms their original charter, upon condition that they erect a new bridge upon the site of their first bridge between East and West Cayuga, and recognizes the bridge near the outlet, by authorizing the company to take the same toll there as is allowed by the acts of 1797 and 1799.
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The following opinions were delivered :
By Mr. Justice Sutherland.
The appellants are the proprietors of two toll bridges over the Cayuga Lake; the one over the broad waters of the lake between the villages of East and West Cayuga, the other over the - outlet about two miles north of the first. The respondents are an association of individuals, who, in 1826, under an act of the legislature passed 16th April, 1825, commenced the building and erecting of a free bridge over the same outlet, a little more than one mile north of the most northerly bridge of the appellants.
The appellants contend that by the acts under which their bridges have been erected, all other persons are prohibited from erecting any bridge over the Cayuga Lake or its outlet, at any place within three miles of either of their bridges, or at all events, within that distance of their bridge over the outlet. The respondents, on the contrary, maintain that the exclusive privileges of the appellants is limited to the distance [94]*94of three miles in each direction from their bridge between East and West Cayuga. It is admitted that the place where the respondents commenced their operations is more than three miles from that bridge, and about one mile only from the other.
The chancellor decided that the respondents were authorized to erect a free bridge at the place where they had commenced building the same; thereby affirming that the exclusive privilege of the appellants is restricted to three miles from their bridge across the lake from East to West Cayuga. Upon a careful examination of the case, I am of opinion, that the chancellor has given the true construction to the acts of the legislature under which the appellants claim.
It is obvious that neither the legislature nor the company contemplated the erection of more than one bridge under the acts of 1797 and 1799. The company could not have built two bridges at the same time, the one over the lake and the other over the outlet. They were to build a bridge over the lake or outlet, at such place as they thought proper. They had an unlimited discretion as to the original location ; but when that discretion was exercised and a bridge was built, their grant was located, and their exclusive privilege attached to the distance of three miles in each direction from that spot. It cannot admit of a doubt that the legislature had a perfect right, immediately after the first bridge was built in 1801, to have authorized the erection of another bridge at any point upon the lake or outlet, more than three miles distant from that bridge. What possible objection could have been raised against such an act 1 could it have been said that it interfered with any vested or even contingent right of the appellants 1 would the argument have been urged, that perhaps the bridge of the appellants might be destroyed, and then they might wish to rebuild it at some other placel I apprehend the answer would have been conclusive, that the rights of the appellants are fixed and ascertained; they have located their bridge; their grant is no longer ambulatory, and the right of the legislature is as perfect to authorize the erection of another bridge three miles and an half from that, or at the head, as the middle of the [95]*95lake; and they might have incorporated in this second grant the same prohibition as is contained in the act of 1799 against the erection of any other bridge within three miles of the last. If these positions are sound, it would seem necessarily to follow that the appellants had no right to rebuild or erect a new bridge after the destruction of their first bridge in 1809, at any other place than where that had stood. They derived all their rights and powers from their charter; whatever that gave them they were entitled to exercise, and what it did not give they had no right to, whether the legislature had"granted them to any other person or not. It is a fair test of the extent of their rights, therefore, to inquire whether an act, such as I have supposed, authorizing the erection of another bridge three miles and one rod from the first bridge of the appellants,-and prohibiting the erection of any other bridge within three miles from that, would have been valid. If it would, it would have been because the appellants had no vested rights incompatible with the provisions of such grant, and of course had no right, under any circumstances, to rebuild or erect a new bridge within three miles of the last. That such a grant would have been valid, appears to me too clear to admit of argument. When the company located their grant and erected their bridge, their situation and rights were precisely the same as though that place had been particularly specified in the charter; and I am therefore inclined to the opinion that they had no right to erect a new bridge at another place, under the authority which they possessed of rebuilding the old one. It must have been foreseen that when this bridge was built, the arrangements and improvements of the neighboring country would be partially affected by it; that villages would probably spring up at each extremity ; that turnpikes and other roads would be made with reference to it, which would be of no use to the public without the bridge. It was undoubtedly under the influence of considerations like these, that the legislature made it an express condition of the grant, that if the bridge should remain impassable for 30 days, or if carried away by the ice, should not be rebuilt in 18 months, the charter should be forfeited, so that another company might be created for the same pur» [96]*96pose, or a free bridge erected by those who had an interest jn t|ie sup,jeCt, and had invested their capital in local improvements, upon the faith that this means of communication would be preserved. I-do not think the bridge erected by the company over the outlet in 1809 was a rebuilding of their first bridge, within the meaning of the charter. If it was not, none of the peculiar privileges conferred by that charter could attach to it, although the charter was never formally avoided.
But admitting that the company had a right to rebuild at any place, within three miles either north or south from their first bridge, I should still hold that the restricted limits were to be measured from the place where the first bridge was erected. The language of the 2d section of the act of 1799, which contains this prohibition, is very explicit; it prohibits the establishment of any other bridge or ferry within three miles of the place where the said bridge should be erected by the company; that is, the bridge to be erected under the act of 1799. Suppose the prohibition had been contained in a separate act, passed after the bridge had been built, and had forbidden the erection of any other bridge within three miles of the place where the said company had built their bridge ? It would hardly be contended that under such a provision, any subsequent act of the company could extend or change the limits to which the prohibition applied.
When the circumstances under which the act of 1812 were passed are considered, I think no inference is to be drawn from it, favorable to the claims of the appellants. It confirms their original charter, upon condition that they erect a new bridge upon the site of their first bridge between East and West Cayuga, and recognizes the bridge near the outlet, by authorizing the company to take the same toll there as is allowed by the acts of 1797 and 1799. But it expressly declares, if the new bridge is not erected, they shall acquire no additional rights by the passing of that act. The act was a matter of compromise between the company and the inhabitants of the neighboring country, who contended that the company had forfeited their charter by omitting to rebuild the bridge on its original site. But they were wil[97]*97ling the charter should be confirmed, if the company would rebuild. But there is nothing in-the act from which it can be inferred that the legislature recognized the right of the company to erect a bridge across the outlet. It is somewhat. remarkable, that when the company thought it necessary to insert in the act an express provision authorizing them to take toll at that bridge, they did not also cause it to be expressly provided that their chartered limits should extend three miles farther north. I apprehend no such pretension was at that time thought of or asserted. The act of 1825, under which the respondents commenced their bridge, saves the vested rights of all parties, and has no bearing on the question presented by this case.
On the whole, I am of opinion that the injunction was properly dissolved, and that the decree below ought to be affirmed with costs.
By Mr. Senator Throop.
The original act of the 28th March, 1797, as amended by the act of 1799, only provides for the mere existence of the corporation. Although its preamble expresses the object of the incorporation to be “ the building a bridge across the Cayuga Lake,” the choice of building their bridge over the lake or the outlet was left to the company. The act for opening and improving certain roads within this state, passed on the same 28th March, 1797, shews the understanding of that legislature that the bridge was not to be erected over the outlet, but over the lake. ■ It directs an expenditure upon the old Genesee road, so called, (which at that time crossed the lake where a ferry was established, about f of a mile above the place where the bridge was built,) “except in that part thereof which deviates from the place where the intended bridge over the Cayuga Lake is to be erected instead thereof a road was to be opened “from the said place, to intersect the Genesee road on the east and west sides of the lake.” It seems to have been an object with the applicants to possess the power of building either over the outlet or the lake, probably to so locate their bridge as most effectually to prevent competition and secure the greatest amount of tolls, while from the act [98]*98referred to, it appears that the expectation was prevalent ai ^ (¡me, that not the outlet, but the lake would be selected. ^’s ,0 be observed also that the original act contemplates but one bridge. It does not authorize the company to erect one at each place, but abridge at either place ; and it does not contain any prohibition such as that contained in the second section of the act of 1799, under which this cause has arisen.
Whatever were the reasons in 17-97 for obtaining or granting the choice of a location of the bridge, they seem to have ceased when the law of 1799 was applied for and granted. This act repeals certain sections of the original act, leaving only such parts as were necessary to uphold the association which had been formed under it, and enlarges all the powers and privileges of the corporation, and more effectually secures them in their enlarged rights. This new charter, (for such it was intended to be,) is applied for by this company after an existence and operation of nearly two years. The deficiencies in the first, for all the purposes contemplated by the parties and the state, had been ascertained ; and it is to be now taken that it contains all the powers which were necessary for the company, and which the state was willing to confer to carry into complete effect the intended grant. Besides, the prohibition in the second section here first introduced, granting exclusive privileges within the limits of three miles each way from the place where the bridge should be erected, is in derogation of the common right of the citizen to pass over the lake where and as he shall see fit. In 7 Coieen, 34, it is decided under this section that no person can cross the lake upon the ice within these limits, without paying toll. Upon both these considerations the act of 1799 should not be construed so as to confer upon the company powers and privileges which are not expressly granted or clearly implied.
But it is contended that the act of 1799 did not take away the right possessed under the original act of building over the outlet; although the question is not material in settling this case, as I view it, which depends upon the situation and extent of the exclusive limits, I think it did. The outlet is [99]*99not mentioned in this act; all its provisions refer directly to the bridge over the lake to be completed by the first of-May, 1801. As it repeals all parís of the original act which provide for tolls or grant any privileges and immunities, if the power remains in the parts not repealed, it can only be of building a free bridge, at which they could not slop a passenger nor demand toll. Although it is highly probable that the public would not have objected to the exercise of a power to thus abridge the right of locomotion, the prohibition in the second section of this act against the erection by any person of any other bridge within three miles each way of the bridge to be built by the company by the 1st May, 1801, extends to and does not except-this company.
The fact appearing from the act referred to, of the same date with the original act, that at that early day a particular location was in view over the lake, and not over the outlet, taken in connection with the increased and precise knowledge of the company after an existence of two'j'ears, will warrant the supposition, that when the new charter was granted, the bridge had been commenced, and its location, as a well known and designated place, was in the contemplation of all parlies in framing and passing this act. The first section uses the words, “for completing the bridge,” and not “for building a bridge.” But whether we are authorized to assume, either from our knowledge or from the provisions of the act, that the company had actually commenced the building of their bridge at the time of framing and passing this second act, a location had undoubtedly been made, and hence. the omission of the word outlet or any reference to it. The company having the power of locating at will under the act of 1797, if they had established their bridge over the lake and excluded thereby the outlet, their power in regard to locating was executed and gone. There was no propriety or use in retaining the word, nor any necessity of repealing the original enactment in the new charter. If such location had not been made, it would in all reason have been found in the same connection again in this act. This supposition is confirmed by all the provisions of the act. In the first section, “ the time for completing the bridge over the Cayuga Lake,” [100]*100and “if the said bridge shall be completed,” are the terms used, and not the time for building and completing, or if the sa'd bridge shall be located, built and completed.
But further, the second section, the prohibition against any person or persons, (not excepting this company,) from erecting any bridge or establishing “ any ferry or ferries within three miles of the place where the bridge aforesaid shall be erected and built by said company,” is a new and additional privilege. It is n'ot in the original act, nor does that grant the company any other protection from competition than what might have been secured by their choice of location ; and whatever reasons or objects might have made it expedient in the first act to obtain the power of locating on the lake or the outlet, they are more completely effectuated by this new section. It is not to be supposed that "such an exclusion would have been granted by the legislature, unless there had been such a location whereby the place and the precise situation and limits became established and well known. The proviso in the eighth section, using the words “at any of the places in this act designated,” would be senseless if no loca-" tion had been made. The language shews that the whole act was framed in reference to a particular situation, that the place was known, not to be designated by any erection thereafter to be made, and this provision can only refer to the prohibitory second section. Upon the whole, I cannot avoid considering this, second section as explicit as if it had contained a particular description of the place, and then prohibited all persons from erecting any bridge within three miles each way of the place described.
If this deduction from the terms and provisions of the act of 1799 is correct, or if the fact could be established out of the act, it then necessarily follows, that no all the provisions of the act of 1799, were passed in reñ-snoec to a well known and designated place, a bridge "completed at any other place would not have been a compliance with the requirements of that act, nor within the authority granted. Its effect upon the question, as to the situation and extent of the exclusive limits of the company, might not be so important, because the completion of the bridge by the 1st May necessarily made [101]*101the point precise, from which the limits were to stretch out each way. From both views, therefore, I consider that down . ... to the time of the destruction of the bridge by ice in 1809, the three miles each way from this place were as distinctly settled and laid down upon the lake as if they had been designated by monuments standing precisely six miles apart, and equi-distant from the place referred to in the act; and as such they were permanent and immoveable. The words of the section, are: “It shall not be lawful for any person or persons to erect any bridge, or establish any ferry or ferries within 3 miles of the place where the bridge aforesaid, shall be erected and built by the company.” The bridge aforesaid is the bridge to be.completed by the 1st May, 1801, and is not a bridge or the company’s bridge; and the place of such bridge, I have considered as a well known situation within, the contemplation of the legislature in this enactment. This prohibition attaches to the place and not to the bridge, much less to any bridge of the company to be thereafter built upon a different and distant site. The bridge is used in this section only to describe the place, the point whence the charter limits are to extend each way, which is to continue fixed, after the " bridge should be "destroyed by ice, and thereafter for 18 months, when there might be no bridge to indicate the exclusive limits of this company. For 10 years, from 1799 to 1809, these limits were settled, known and distinct; can it be said that they were then detached from their firm foundation, made to move down to the outlet- 2 miles, and there to stretch out again to the prescribed extent 1 or, can it be said that this prohibition attached or can attach to any bridge over the outlet; a place in nowise alluded to in this section nor in the whole act 1 It cannot be, because by its terms it is not attached (o any bridge, but to the site then known or to become so by the completing^ the first bridge in May, 1801.
It is not insisted that the act of 1812 materially bears upon this question respecting the charter limits, except as a legislative declaration of the company’s right under the original acts, to build the bridge over the outlet after the destruction of the first; to which, it is contended, the privileges and immunities of the company attached at once. My opinion [102]*102has been sufficiently indicated that they had no such right; (¡ie¡v charter rights resulted from, and were dependant uPon> their completing, preserving and rebuilding, when necessary, the bridge over the lake. But if they had such right the consequences contended for, particularly so far as respects the extension and removal of their charter limits, by no means follows. This company built a bridge over the lake by or before the 1st May, 1801, as authorized and required by their charter; the prohibition attached to the place where that bridge was built, and not to the bridge itself. They surely did not move that place by moving the location or site of the bridge, and unless they did, the exclusive limits must remain the same in extent and situation as they were before the bridge was built over the outlet in 1810. If this prohibition was found in the act of 1797, where the choice of location over (lie lake or over the outlet is given, there would be more plausibility (though no more truth ns I can perceive) for saying that it attached to and was depend-ant upon the company’s bridge, and not to this site; but it is not, and unless the limits of the prohibited ground, are extended in the act of 1812, there is no foundation for the assumption. That act was the result of a compromise between the company and the public move immediately interested in having a bridge rebuilt upon the site of the old one; by which the company succeeded in arresting legal proceedings to dissolve the corporation upon the forfeiture provided for and declared in the 8th section of the act of 17.99. The 2d section enacts, that when a substantial bridge crossing the lake upon the site, of the first one shall be completed, the company shall have, possess and enjoy all the rights, privileges and immunities which were granted to them by the original act of incorporation, and the several acts amending (he same; and the 3d section legalizes their bridge over (lie outlet. In this act no authority is found for the attempted extension of the original prohibition, and consequently no reason why the respondents may not lawfully erect their bridge at the proposed site.
I am therefore of opinion that the appellants have failed to shew that the place selected by the respondents for their [103]*103bridge was within the prohibited limits, and that the decree of the chancellor ought to be affirmed.
This being the unanimous opinion of the court, the deeree of the chancellor was thereupon affirmed with costs.