By Mr. Justice íIítcucocsv :
The complainant in this case, charges, that ho, for [302]*302along time lias been* and now is, the proprietor of a ferry across the Black Warrior river, opposite the town of Tuskaloosa, under a license from the County Court of Tuskaloosa County ; that the defendants under, and by virtue of an act of incorporation granted by the Legislature of this State, are about to erect a toll bridge across1 .the said river within a few yards of his ferry, which if completed will very materially injure, if not entirely destroy the value of his ferry. He further states, that he is the proprietor of a piece of land on the north side of the river, upon wdiioh the defendants intend to place one of the abutments of the bridge, and through which they intend to run a road leading from the bridge, out to the main public road, leading from his ferry to the country. He contends that this act of the Legislature is in violation of his private rights, and prays an injunction against the defendants, prohibiting the erection of the bridge.
The defendants have answered the bill, and have admitted the material facts as therein stated, but insist, by way of demurrer to the bill, that the complainant has not made out a case for the interposition of a Court of Chancery. The injunction, which was granted upon the filing of the bill, was, on hearing of the bill, answer and demurrer, dissolved, and the bill dismissed; and the case has been brought to this Court for revision.
The complainant insists, that the grant to him of this ferry, is a contract between him and the State, and that this act of incorporation is unconstitutional and void.
I. Bepause it operates to the destruction of his grant. •'
II. Because it impairs the obligation of his contract with the State ; and,
[303]*303III. Because it deprives Mm of His property, without due process of law, and without just compensation. f ■" ' •
An investigation into the constitutionality of an act of a co-ordinate department of the- 'government, is always a delicate, if not a painful duty. . But, when the rights of individuals are concerned, and the question is distinctly presented, Courts, have no alternative. Upon the faithful discharge ;,of their duty, depends the “integrity and duration of the government and if the Court, in the investigation of this case, had found the positions assumed by the complainant, sustained by the constitution and the laws, they would not hesitate to pronounce the -act complained of, void. ■
The Court has not, however, in- the view which it takes of the complainant’s rights, in this case, found any thing in the law complained of, which authorizes its interference. . • .
The laying off, regulating, and keeping in repair, roads, high-ways, bridges and ferries, for the public use and convenience of the citizens, is an exercise of the supreme authority of the State, coeval with the institution of civil society, and.indispensable to the free exercise of social and commercial intercourse, -and as soon as men cease' to roam abroad as savages, ■and lands become appropriated to private Use, the reservation for public accommodation of a sufficiency for these purposes, is necessarily implied, and the mod e of regulating its use, is necessarily vested in the State. It is a part of the eminent domain, and as such is treated by all writers on -Public Law.
[304]*304Cm* Legl.dMiurc, in the exercise of this authority, have dulog-b :•••! to the Judge of the County Court and Coiir.n.üi-'io'.iCi'e of ruede in each county in this State, the power to k-y out public roads, to discontinue and alter the snnw, when found useless, so as to make thorn more vu-enia-to establish. ferries, by granting licenses to individuals under certainrogulaticns ;b and to erect free bridges, under the direction of the overseers, or to grant license» for toll bridges to individual, under certain, regulations. But-in all cases where ferries and loll bridge» are authorised, the. rights of too i ml i vid uais to whom the grants are made, are held subject to the ¡vo/perior and paramount rights of the community. The only right secured by law to persons who have licenses to keep ferries, is that “ no ferry shall bo established within, two miles of another a!reedy established,” and in case of toll bridges with- . in three miles, and this right does not extend to ferries opposite to towns. In such cases, as many ferries may-bo established as tho Court may think proper ; and in al! cases bridges may be established along side of ferries, in tbs discretion of the Court; so that in this caso, the right of the complainant was and is subject to the establishment of ferries, and the erection of .a bridge even by the County Court, in the immediate neighborhood of his ferry. If the Comity Court - could then, have authorised the erection of this bridge under the general road laws, it is not perceived that the Legislature, who have,invested the County Court with tins discretion, are prohibited from making the grant directly.
It is true, that the grant of a ferry is a franchise. There are a great variety of franchises-some of them founded on valúa,ble considerations, and necessarily exclusive in their nature, and which the gov-[305]*305eminent cannot resume at their pleasure, or do any other act to impair the grant, without a breach of the contract. An estate in such a franchise necessarily •implies that the government will not eithei directly or indirectly interfere with it, so as to destroy or materially impair its value, either by the creation of a rival franchise or otherwise.a But a grant of- a ferry , ,. , , j. J3 J over a public water course, and for the .convenience of the community, is not such an exclusive grant as is contemplated in such a case.
But, it is contended, on the part of the complainant, that, admitting the Legislature have the powef, upon the principles of public policy, to authorise the establishment of this bridge, and thereby destroy the value of this ferry, that this can only be/'d'one by making adequate compensation to him for this loss; on the principle that private property cannot be taken for public uses, without just compensation. If this was a private and exclusive grant,' founded upon a valuable consideration paid' therefor;*"tlils argument would undoubtedly be good. Butyijf we have successfully shewn, that this is not such-, algíant, as we think we have, then this principle-, doee not apply. What property has the complainant in,'this ferry, except in its use ? and by what tenure ¿bes he claim the right to this use ? It was originally granted to him for the benefit of the public : that' public, it is now thought, require greater facilities — ‘they have been granted; and if Ms profits aid theieby lessened, has he any cause of complaint? • lie received his license subject to this contingency.,' and mtist abide by the consequences. Suppose the public convenience should require the road leading to a ferry to he chang- ' ed, and the old road closed up. The County Court [306]*306has the power given to them to do this.
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By Mr. Justice íIítcucocsv :
The complainant in this case, charges, that ho, for [302]*302along time lias been* and now is, the proprietor of a ferry across the Black Warrior river, opposite the town of Tuskaloosa, under a license from the County Court of Tuskaloosa County ; that the defendants under, and by virtue of an act of incorporation granted by the Legislature of this State, are about to erect a toll bridge across1 .the said river within a few yards of his ferry, which if completed will very materially injure, if not entirely destroy the value of his ferry. He further states, that he is the proprietor of a piece of land on the north side of the river, upon wdiioh the defendants intend to place one of the abutments of the bridge, and through which they intend to run a road leading from the bridge, out to the main public road, leading from his ferry to the country. He contends that this act of the Legislature is in violation of his private rights, and prays an injunction against the defendants, prohibiting the erection of the bridge.
The defendants have answered the bill, and have admitted the material facts as therein stated, but insist, by way of demurrer to the bill, that the complainant has not made out a case for the interposition of a Court of Chancery. The injunction, which was granted upon the filing of the bill, was, on hearing of the bill, answer and demurrer, dissolved, and the bill dismissed; and the case has been brought to this Court for revision.
The complainant insists, that the grant to him of this ferry, is a contract between him and the State, and that this act of incorporation is unconstitutional and void.
I. Bepause it operates to the destruction of his grant. •'
II. Because it impairs the obligation of his contract with the State ; and,
[303]*303III. Because it deprives Mm of His property, without due process of law, and without just compensation. f ■" ' •
An investigation into the constitutionality of an act of a co-ordinate department of the- 'government, is always a delicate, if not a painful duty. . But, when the rights of individuals are concerned, and the question is distinctly presented, Courts, have no alternative. Upon the faithful discharge ;,of their duty, depends the “integrity and duration of the government and if the Court, in the investigation of this case, had found the positions assumed by the complainant, sustained by the constitution and the laws, they would not hesitate to pronounce the -act complained of, void. ■
The Court has not, however, in- the view which it takes of the complainant’s rights, in this case, found any thing in the law complained of, which authorizes its interference. . • .
The laying off, regulating, and keeping in repair, roads, high-ways, bridges and ferries, for the public use and convenience of the citizens, is an exercise of the supreme authority of the State, coeval with the institution of civil society, and.indispensable to the free exercise of social and commercial intercourse, -and as soon as men cease' to roam abroad as savages, ■and lands become appropriated to private Use, the reservation for public accommodation of a sufficiency for these purposes, is necessarily implied, and the mod e of regulating its use, is necessarily vested in the State. It is a part of the eminent domain, and as such is treated by all writers on -Public Law.
[304]*304Cm* Legl.dMiurc, in the exercise of this authority, have dulog-b :•••! to the Judge of the County Court and Coiir.n.üi-'io'.iCi'e of ruede in each county in this State, the power to k-y out public roads, to discontinue and alter the snnw, when found useless, so as to make thorn more vu-enia-to establish. ferries, by granting licenses to individuals under certainrogulaticns ;b and to erect free bridges, under the direction of the overseers, or to grant license» for toll bridges to individual, under certain, regulations. But-in all cases where ferries and loll bridge» are authorised, the. rights of too i ml i vid uais to whom the grants are made, are held subject to the ¡vo/perior and paramount rights of the community. The only right secured by law to persons who have licenses to keep ferries, is that “ no ferry shall bo established within, two miles of another a!reedy established,” and in case of toll bridges with- . in three miles, and this right does not extend to ferries opposite to towns. In such cases, as many ferries may-bo established as tho Court may think proper ; and in al! cases bridges may be established along side of ferries, in tbs discretion of the Court; so that in this caso, the right of the complainant was and is subject to the establishment of ferries, and the erection of .a bridge even by the County Court, in the immediate neighborhood of his ferry. If the Comity Court - could then, have authorised the erection of this bridge under the general road laws, it is not perceived that the Legislature, who have,invested the County Court with tins discretion, are prohibited from making the grant directly.
It is true, that the grant of a ferry is a franchise. There are a great variety of franchises-some of them founded on valúa,ble considerations, and necessarily exclusive in their nature, and which the gov-[305]*305eminent cannot resume at their pleasure, or do any other act to impair the grant, without a breach of the contract. An estate in such a franchise necessarily •implies that the government will not eithei directly or indirectly interfere with it, so as to destroy or materially impair its value, either by the creation of a rival franchise or otherwise.a But a grant of- a ferry , ,. , , j. J3 J over a public water course, and for the .convenience of the community, is not such an exclusive grant as is contemplated in such a case.
But, it is contended, on the part of the complainant, that, admitting the Legislature have the powef, upon the principles of public policy, to authorise the establishment of this bridge, and thereby destroy the value of this ferry, that this can only be/'d'one by making adequate compensation to him for this loss; on the principle that private property cannot be taken for public uses, without just compensation. If this was a private and exclusive grant,' founded upon a valuable consideration paid' therefor;*"tlils argument would undoubtedly be good. Butyijf we have successfully shewn, that this is not such-, algíant, as we think we have, then this principle-, doee not apply. What property has the complainant in,'this ferry, except in its use ? and by what tenure ¿bes he claim the right to this use ? It was originally granted to him for the benefit of the public : that' public, it is now thought, require greater facilities — ‘they have been granted; and if Ms profits aid theieby lessened, has he any cause of complaint? • lie received his license subject to this contingency.,' and mtist abide by the consequences. Suppose the public convenience should require the road leading to a ferry to he chang- ' ed, and the old road closed up. The County Court [306]*306has the power given to them to do this. Can the owner of a ferry at the old crossing, say; that this must be done only upon paying him what he may loose by the change. The fallacy of the proposition appears too plain to admit of elaborate illustration.
But, it is contended, that thé Legislature have not only wrongfully destroyed the value of the ferry, but that they also wrongfully authorised the taking of plaintiff’s land for the abutments and the road.
By the 9 th section of the act incorporating this 'company, it is made the duty of the superintendents named in the act, to “ select a site for the bridge, and also a site for a road leading to and from said bridge, and mark out the same, and apply to the court of roads and revenue for a jury to assess the •damages, if any shall be claimed, for the lands the road may pass through, whose duty it shall be to appoint said jury, and as soon as the damages shall be paid by the company, to order the road to be opened, under the same rules and restrictions as other public highways, and which road shall be of the first grade, until it shall intersect other roads.”
Admitting, that as well by the Common Law, as by the 13th article of our Bill of Rights, private property cannot be taken for public uses, without just compensation, yet the Court can see nothing in the section above recited which conflicts with this principle. Here, as much ground as is necessary, for a road from the bridge to the main public road, is condemned, and placed upon the footing of other public highways; but before it can be taken, a jury is to assess damages, if demanded, which damages must be first paid before the ground can be used. This is the ■ordinary mode of condemning the use of lands in such crises. A transfer of the feo of the land to the [307]*307company was not necessary, and it is presumed, was-not contemplated; and should the bridge be destroyed, and the company dissolved, the use of the ground would thereby revert to the original proprietor. It is decided in 2 Bay's So. Car. Rep. 38-that the Legislature of the country is vested with the power to, pass laws for laying off roads and highways in every part of the State, and to appoint commissioners to see them kept in repair, whenever they may think convenient and proper, without any compensation to the owners of the lands through which they run. This, it is said, is a part of the lex terree — a condition attached to all freeholds, and which existed before, mag-, nackarta. However this may be, as to compensation; in this case the Legislature have given the proprietor a mode of recovering damages, if he thinks proper to. demand them, equal to the injury he may sustain.
We are, therefore, in every point of view, in which this case can be viewed, clearly of the opinion, that the decree below must be affirmed.
Vattel, lib. 1, ch. 20, § 249, Bynkershoek, lib. 2, chap. 15. Domat, book 1 tit. 8, § 1.