Gales v. Anderson

13 Ill. 413

Opinion

Catón, J.

By the first section of the act of 12th February, 1827, it is provided: “ That whenever it shall be considered necessary to establish a ferry or toll-bridge across any lake, river, creek, or any other watercourse within the limits or upon the borders of this State, or to turnpike or causeway any public road or highway, it shall be the duty of the County Commissioners’ Court of the proper county, on due application being made by any qualified person or persons, to establish and confirm the same, by a special order to be made for that purpose, under such regulations, restrictions, and forfeitures as are hereinafter directed and pointed out.” The 9th section of the same act provides that “ the owner or owners, keeper or keepers, at all ferries and toll-bridges which are now or hereafter shall be established by law and kept agreeably to this act, shall have the exclusive privilege of the transportation or passage of all persons, their teams, horses, cattle, and other property, over and across the same, and be entitled to all the fare by law arising therefrom.”

Under the authority conferred in the first section quoted, the County Commissioners’ Court of Henderson county, on the 5th of September, 1842, passed the following order: “ Ordained, that Thomas L. Thruston and John F. Webb have a license to keep a ferry across the Mississippi River, from the mouth of the running slough above the residence of Thomas Morgan, and opposite the city of Burlington, to extend down said river to where the slough enters into the Mississippi River, or big slough opposite the small island; that they shall have the privilege of landing at Montreal, in high water. And it is further ordered, that an order passed the 7th of September, 1841, granting license to William H. Manro to keep a ferry, be rescinded.” Under this order, and the license issued in pursuance of it, the persons named therein established a steam ferry, which they maintained till the 6th of August, 1845, when they assigned their ferry-boat and franchise to the complainants, who have ever since maintained the same. The testimony shows that the distance between the two points named, extending along the east bank of the Mississippi River, is about three miles, and opposite the city of Burlington.

On the 25th of July, 1844, the same court granted a license to the Andersons by the following order: “ Ordered, that the clerk of this court issue a license to David B. Anderson and Henry C. Anderson, of Burlington, Iowa Territory, to run a horse ferry-boat across the Mississippi River, from the Illinois shore to Burlington, with the privilege of landing as far north as the road near the line between towns 9 and 10 north, 6 west, and have the privilege of landing at Stockton when the water is high, or any intermediate point, upon the condition that they pay ten dollars tax, and file their bond, with approved security, conditioned according to law.” In the exercise of the franchise thus granted, a horse-boat has been put on and kept up as a ferry, making a landing near the northern extremity of the limits prescribed in the order, and about a fourth of a mile south of the complainants’ landing, and about a mile and a half north of the south line of the limits prescribed in the order granting the complainants’ franchise. At least I infer these to be the facts, although the testimony fixing some of these points is very obscure, owing, no doubt, to the fact that it was not remembered, at the time the testimony was taken, that we are not as familiar with the relative location of the several points referred to, as were the persons then present. No controversy seems to have been made about these relative locations, else nothing would have been left to inference. The complainants allege that the establishment of this last ferry is an infringement upon their exclusive rights, which they seek to protect by a perpetual injunction.

That the complainants’ franchise is exclusive, the statute leaves no doubt. The ninth section above quoted declares that the owner of such ferry “ shall have the exclusive privilege of transportation or passage of all persons, their teams, horses, cattle, and other property, over and across^ the same, and be entitled to all the fees by law arising therefrom.” Here is most unquestionably an exclusive right granted to the ferryman to cross all persons, &c., upon the ferry thus established. The word same refers to the ferry; and when we ascertain where the ferry is, we know the extent of the complainants’ exclusive privilege. We f agree with the complainants’ counsel, that the landing-place is a necessary appurtenant to, and is indeed a part of the ferry as much as the ferry-boat. But such appurtenance does not extend beyond the ferry ways or necessary landing place. That this was the understanding of this section, by the legislature, is manifest from the fact that they thought it necessary, two years after, to pass another law, in order to extend the exclusive privilege. This is found in the second section of the act of the 22d of January, 1829, which prohibits the establishing a ferry after the first day of May, in that year, when that act took effect, within two miles of any established ferry, on the Mississippi, Ohio, Illinois, or Great Wabash Rivers. As the law stood from the 1st of May, 1829, till the 19th of January, 1833, no rival ferry could be established on any of the rivers named, within two miles of an established ferry; which, of course, gave the owner of such ferry an exclusive right of ferriage within that distance. By the act of the 19th of January, 1833, so much of the laws of 1827 and 1829 “ as prohibits the establishing of any ferry on the waters of the Mississippi, Ohio, Elinois, or Great Wabash Rivers, within two miles of any such established ferry,” was repealed. This certainly left the authority uncontrolled in the County Commissioners’ Court, to establish upon the rivers named rival ferries as near each other as they should think the public good might require.”

But it was insisted, that because the order of the court creating the complainants’ franchise allowed them to establish a ferry across the river, from one point to another on the east bank of the river, which are three miles apart, their ferry embraces the whole three miles; that their landing-place is three miles long on the east bank of the river, and that, as their ferry embraces the whole- of that distance, their exclusive rights are to that extent. If such is the proper construction of the order, and the court had a right to grant so extensive a franchise, there is no escaping the conclusion that the complainants’ rights are exclusive to that extent. We are of opinion that the reasonable and necessary construction of this order, is that the grantees of the franchise should establish a ferry and fix then’ landing-place at some point within the prescribed limits, and that the point thus selected should designate the location of their ferry, and limit their exclusive rights. In ordinary times, and in an ordinary stage of water, that it would be their duty to land there. When the stage of the water should render a landing there impracticable or inconvenient, they should have the right to land at other points. By changing their landing-place temporarily and from necessity, they should not be considered as abandoning their ordinary landing-place. The same construction must be given to the order creating the defendants’ franchise. Should we adopt the construction contended for by the complainants, we should have to hold that the defendants’ exclusive rights extend down the river to the county line,—the extent of the jurisdiction of the court, — for there is no southern limit prescribed in the order establishing the defendants’ ferry, at least none except by implication. But both parties, in the exercise of their franchises, have acted in conformity to the construction which we give the orders creating them. The complainants selected their landing-place on the west half of the south-west quarter of section thirty-three, and their agent informs us that this is their exclusive landing-place in an ordinary stage of water. When the high water compels them to abandon this, they land temporarily at other points, according to the exigencies of the case. The defendants have selected and occupied their landing about a quarter of a mile below that of the complainants, upon or near the township line, landing temporarily at other points, when compelled to abandon their ordinary landing in consequence of high water. With this evidence before us, we cannot doubt as to the location of these two ferries, and the exclusive rights of each are confined to the ferries thus located and used. Should we hold that the complainants’ ferry ways extend the whole three miles, as was contended on the argument, we might impose a burden upon them which would render their franchise valueless. If their ferry ways extend this whole distance, then they must be at all times ready to transport all passengers who present themselves within that distance, for they are bound to be prepared to transport all who present themselves on their ferry ways. But admit that their obligations would not be so extensive, still they are certainly bound to afford reasonable accommodations to the travelling public seeking to cross the river at their ferry. There may be, and indeed the evidence shows that there are, several important thoroughfares terminating upon the river within the distance which the complainants claim as their exclusive ferry landing. Shall they run a boat to each of these points ? If they have the exclusive privilege claimed, they are certainly bound to do so ; and then they have two ferries instead of one, when the order certainly establishes but one ferry. Suppose Burlington had been on this side of the river, and the order had been to allow the grantees of the franchise to establish a ferry to and from that city, specifying no landing-place. Could it be said that the whole city front would constitute their ferry ways, and that no other ferry could be established with authority to land within the city, no matter what the public necessities might require? Could it be said that their ferry ways and exclusive rights extend over private property lying upon the river, the owner of which is by the statute entitled to a preference, if a ferry is to be established upon it, and upon which the complainants could not land without becoming trespassers? Would they be bound, or would they even have the right to run a ferry from each travelled street abutting upon the river ? The reasonable construction of such an order would be, that they might select their point within the limits of the city, upon which they would establish their ferry, and that when selected, they had deferred their rights, which were before indefinite, perhaps with the right of changing their location, if they should choose to do so, without interfering with the rights of others. Suppose the order had authorized them to establish a ferry across the river from the county of Henderson to the opposite side, designating no point or any other limit, would it ever be contended that they had the exclusive right of ferriage on that river, for the whole county, and that all the travel of the county wishing to cross must come to one particular landing, or that they should or could establish a number of ferries many miles apart ? Such a right or duty was not contended for under this license; and the County Commissioners’ Court has no authority to grant a license to keep a ferry, with any more exclusive rights than are guaranteed by the statute. The commissioners cannot confer rights which will prevent them from establishing such other ferries as the public convenience may require.

The first section above quoted provides, “ That, whenever it shall be considered necessary to establish a ferry,” &c., “ it shall be the duty of the County Commissioners’ Court of the proper county, on due application being made by any qualified person or persons, to establish and confirm the same by a special order, to be made for that purpose,” &c. Here is a duty imposed, as well as a jurisdiction conferred, upon the Commissioners’ Court. The public convenience and the express law require them to perform this duty; and they cannot divest themselves of the power to do so, by granting rights inconsistent with its performance. The commissioners are clothed with this jurisdiction, in order to subserve and promote the public interests, and not for their private benefit; and they have no right to barter away those public interests, by divesting themselves of the power to perform an important duty to the public, which the law conferring the jurisdiction enjoins upon them. If they have a right to grant a ferry license in such a way as to prevent them from establishing other ferries, which, in their judgments, or in the judgments of their successors, the public good might require, they might impose an intolerable burden upon the community for all time to come. It is no answer to say, that the law enjoins upon the grantees of the franchise, to put on as many boats, and to land at as many different points within the prescribed limits, as the public convenience may require. As before shown, such a construction of the license might authorize and require the establishment of several different ferries, instead of one, while the establishment of but one was manifestly contemplated by the order. If the commissioners have the right to grant to one man, or one company, the entire monopoly of ferrying to and from a particular city, they may grant to one an exclusive right to do all the ferrying in the county; and such a monopoly would not only shock the sense of propriety of every reflecting mind, but would be in palpable violation of the spirit and intent of the law. We all know, what the testimony in this record makes most manifest, that, where there is an extensive line of travel, the public accommodation is not sufficiently subserved by placing in the hands of one man, or one company, an exclusive right to do all the ferrying, although they may be required by law to provide sufficient boats to do the business. The terrors of a legal prosecution are not sufficient to procure that prompt, eager, and zealous desire to accommodate the public, which are secured by the stimulating influence of rivalry. The evidence in this case shows, that the ferrymen upon the complainant’s boat were much less accommodating, and that the public was much less efficiently served, before the defendant’s boat was put on, than has been the case since. Formerly, it was a very common, if not a universal, practice, on the complainant’s boat, to refuse to carry over a single passenger or team; but they would wait till others should arrive before they would make the trip ; and it was not unfrequent for them to delay for hours, for no other cause. We are also told by the witnesses, that the public convenience has been materially promoted by the establishment of a new ferry, in securing the passage of the river at times when the old ferry could not or did not run. During one winter, the horse ferry-boat run from fifty to sixty days, when the steam ferry-boat refused to cross at all, but was laid up; and yet, if it had not been demonstrated, by the actual running of the defendant’s boat, it might have been very difficult to establish in a court of justice that, during that time, the complainant’s boat might have been run with safety. These considerations of public convenience are not referred to with a view of showing that any rights vested in the complainants may be taken from them in this mode; but they show the wisdom of the law in withholding from the County Commissioners’ Court the power to grant a license which will prevent them afterwards from establishing such other ferries as the public good may require.

The whole scope of our ferry laws contemplate a ferry landing at some specified point. Thu's, the third section of the act of 1827, under which this license was granted, provides as follows : “And such ferry keeper shall, at all times, keep the place of embarkation and landing in good repair, by cutting away the banks, and erecting wharves and causeways, when necessary, so that passengers, their teams, horses, cattle, and other property, may be embarked and landed without danger or unnecessary delay.” The location of the ferry is at such point of embarkation and landing, which the owner of the ferry is bound to keep in repair, and must be confined to such point, with the reasonable privilege of landing at other places, temporarily, when the stage of the water renders that necessary. At the point selected for his ordinary landing-place, are his ordinary ferry ways, and this is necessarily appurtenant to his ferry; and it is there that his exclusive right of ferrying exists, which is protected from intrusion under any subsequent grant. Suppose this had been a license to erect a toll-bridge, with the same description of location which we find in this order, the party might, with equal propriety, claim that his exclusive right extends over the whole three miles; and yet it has been expressly decided, that he would have defined and limited his rights by the selection of the location and the erection of the bridge. The Cayuga Bridge Company v. Magee, 6 Wend. 85. And that case even goes so far as to decide, that he could not change his location for the erection of a new bridge, after the first had been destroyed. The mere practicability of changing the location, does not vary the character or extent of the exclusive rights conferred. The same fiction, which would make a ferry landing three miles broad, might stretch the abutments of a bridge to the same extent.

When this license was granted, the right to locate the ferry was ambulatory within the three miles, till it was fixed by the establishing of the ferry, and the selection and occupancy of the landing-place; and we will not say, that the owners of the ferry might not afterwards change their permanent location, should they find it convenient and necessary to do so; and, as we know from the character of the river, from very necessity, they must have the right, at high water, to land temporarily at other points. This right is manifestly contemplated by the order itself; and this necessity may serve to explain the indefinite expressions used as to the location of the ferry. Surely it was never the intention of the court to compel the grantees of the franchise, under the third section of the act above referred to, to make a practicable landing, the whole extent of the three miles upon the river; nor did they ever intend to assume any such obligation; and yet, such would seem to be their duty, if their ferry, — their place of embarkation and landing, — is thus extensive. They were, in our opinion, authorized by the order and license to select their landing-place within the prescribed limits. They did so select it; and there is their ferry, and to that is their exclusive right confined ; and the establishment of another ferry, at another point, although within the same limits from which they were authorized to make their selection, is no infringement upon their rights.

The decree of the Circuit Court is affirmed.

Decree affirmed.