Gates v. M'Daniel

2 Stew. 211

• Court: Supreme Court of Alabama
• Decided: July 15, 1829
• Status: Published

Opinion

By JUDGE TAYLOR.

The statute of 1820, section 17 provides, “that no public ferry shall be established within less than two miles by water, of any ferry already .established, unless on any river at or within two miles of ;iny town.” And hy the, 20th section, of that act, it h-declared, “that if any person or persons shall establish a public ferry or a public road, toll-bridge, or causeway, contrary to the provisions of this act, he or they shall forfeit and pay five hundred dollars” &c. The meaning of this last section clearly is, if a toll-bridge &c. should be established without an order of Court, then the forfeiture shall be incurred. But as this is not a toll-bridge, it does not come within the words of the statute, which is penal and must be strictly construed.

What is the reason that persons are prohibited from establishing a public ferry within two miles of another? Clearly because the owner of the first has entered into onerous engagements when he obtained the order to establish his ferry. He has became bound to keep good boats, constant attendance, &c. this requires that he should receive compensation, and it is important to the community that he should observe faithfully the engagements he has entered into. Unless he has some such protection, his ferry will become profitless, of course will be neglected, and travellers and others meet with great delays. But will the object of the general assembly in affording this protection he defeated by the erection of a bridge within the prohibited distance? Certainly, much more effectually than by establishing a ferry. It is said though that in the record, there is some showing that this place came within the exception, as there was a town where this bridge is built. I am far from being satisfied that there was a town within the meaning of the act; but it is a sufficient reply to this objection, that this bridge was not established by order of the County Court.

Apart from all statutory provisions, except those which relate to the establishment of the ferry, I am decidedly of opinion that the defendants had no right to build a public bridge within the immediate' vicinity of the ferry, calculated to destroy the profits of the ferry. The complainant had regularly made his application to the County Court, entered into bond as the law directs, and was liable to be sued on that bond if he failed to comply with its conditions: certainly then he must receive the protection which he had a right to expect when he gave this bond, and without which it will not be in his power to fulfil its conditions. In a case reported in 1 Johnson’s Chancery Reports,

a it is determined that “an injunction will be granted to secure to a party the enjoyment of a privilege confered by statute, of which he is in the actual possession, and when his legal title is not put in doubt. As when a turnpike company, incorporated with the exclusive privilege of erecting toll-gates and receiving toll, had duly opened, and established the road with gates, &c. an(j cer(-a¿n persons with a view to avoid the payment of toll, opened a by road near their turnpike, and kept it open, at their own expense, for the use of the public, by which travellers were enabled to avoid passing through the gates, and paying toll to the plaintiff; the Court granted a perpetual injunction to prevent the defendants from using or allowing others to use such road, and ordered the same to be shut up. a This case is so precisely in point, that it is needless to comment upon it.

The decree of the Court below must be reversed; and this Court proceeding to render such decree as should have been rendered below; it is ordered, adjudged, and decreed, that the injunction be reinstated and perpetuated, and that the defendants pay the costs of the suit.

Judge Crenshaw, not sitting.

Page 611,

See also 1 Haywood 457.