Hartford Bridge Co. v. Union Ferry Co.

29 Conn. 210

• Court: Supreme Court of Connecticut
• Decided: September 15, 1860
• Status: Published

Opinion

Ellsworth, J.

We have held this cause a long time under consideration, it being one of great pecuniary interest to the parties, and involving a question of much public interest.

The question grows out of the construction of the resolve of the General Assembly, passed in 1818, for the benefit of the Hartford Bridge Company. It is in the following words :— “ That whenever the bridge company shall have repaired said bridge without a draw, and shall have raised and repaired the causeway, to the acceptance of the commissioners appointed by the original grant, the ferries by law established between the towns of Hartford and East Hartford shall be discontinued; and said towns shall thereafter never be permitted to transport passengers across said river, unless on the happening of the contingencies hereinafter mentioned.”

The occasion of this resolve was this. The petitioners, soon after their incorporation in 1808, had erected a bridge at the place of the present one, which they continued to enjoy until 1818, when it was carried away by the freshet, or so greatly injured that it became necessary to rebuild it. The General Assembly at their session of that year, provided that in rebuilding the bridge certain alterations should be made therein, and that the causeway through East Hartford meadows should be raised, and some further expenses incurred by the company, in consideration of which the Assembly passed the resolution above recited. The ferries were located a few rods south of the bridge, and up to this date, (1818,) had not been discontinued.

It was decided by this court, in the case of the present plaintiffs against the town of East Hartford, reported in 16 Conn. R. 149, that the resolution in question must be held to be an enlargement of the original charter of the company, and that it is irrevocable until the company shall have received a certain remuneration by their tolls, which remuneration has not yet been realized.

In 1859 the Union Ferry Company was incorporated, and empowered to establish a ferry across Connecticut river, about one and a half miles south of the bridge, and some two miles north of the south line of Hartford and East Hartford. This ferry they have established and are now using, and it is to prevent the continuance of it by a perpetual injunction that the present bill is brought. The petitioners insist that the legislature can not authorize the establishment of a ferry at any point on the river, within the limits of Hartford and East Hartford, without first making them an adequate compensation. These limits are about five miles north and south. This the petitioners deny. They insist that the legislature have not, by the resolve of 1818, restricted themselves to any such extent.

Much has been said in the course of the argument as to the rule of law which should govern the court in putting a construction upon grants and charters by the legislature. The respondents contend that courts are bound to construe them with great strictness, a strictness akin to that with which courts construe penal statutes; that is, that nothing shall be held to pass to the grantee by implication, nothing beyond the very word and letter of the grant, although the understanding of the parties be most- apparent, and although in any other case the instrument would be held to convey the thing intended; and some cases have been read in which judges have expressed themselves somewhat in this manner. But we doubt very much the propriety of any such general rule of law. We know not why such stringency is to be applied to a legislative grant more than to any other grant. In every, other case where we look to a contract to learn what are the rights of the parties, we seek to know what the contracting parties intended by the contract, or what the language and scope of the instrument mean to express; and it is the same whether it is a public or private agreement. In other words: it is our duty to ascertain by a fair, intelligent, and equitable construction of the language made use of, viewed by itself, or in its application to the subject-matter, what is the character and extent of the grant. If the intention is clear or satisfactory, then we are bound to adopt it as the rule prescribed by the parties, and to hold to it as fully against the legislature as against an individual. Any other rule must necessarily be a false one, and must lead to unjust results and consequences. Such is the view taken by Mr. Parsons in his treatise on contracts, (Vol. II, p. 19, note k,) and by many of the judges whose remarks are cited by him therein. We feel confident that it can not be the duty of courts, who sit to carry out the agreements of parties, to be curious and subtle in inventing rules to thwart their intentions legally expressed; especially, if the agreements are founded on valuable considerations, as most public grants are. Courts of justice, we repeat, should endeavor to effectuate contracts, whenever they can do it, by a fair and rational construction of the language made use of. To do otherwise, will be to sacrifice the rights of parties, by adhering too rigidly to artificial rules, which are never to be resorted to unless the true meaning can not be learned otherwise. Where this is the case, where grants or instruments are equally susceptible of two constructions, so that one party or the other must suffer, the rule of law undoubtedly is, that such an ambiguity shall not operate to the prejudice of the state, but to the party which has made use of such ambiguous language; for the same reason in part that an ambiguity shall not operate in favor of a private grantor. In both Cases the construction is to be against the party whose language is faulty ; and public grants and charters are treated as if drawn up by the grantee or recipient of the thing granted. Possibly this is not always the case, and, perhaps, this is not the entire reason of the rule, but whether it is or not, it is conceded to be the rule adopted in private grants, and the exact reverse is conceded to be the rule in grants by the legislature. Every presumption we allow is to be in favor of the state.

We need not pursue this topic at any greater length; nor will we remark particularly upon the many authorities read on the argument in its elucidation. Ever since the decision of the Charles River Bridge case, in the court of Massachusetts, and afterwards in the Supreme Court of the United States, it has been held to be the settled law throughout the country, that charters are to be construed most favorably fori the state. The cases are all one way, and they have accumulated in the several states until our books are filled up with them.

What we have aimed at in these remarks is, not to reargue the question on principle, but to state what we understand the rule of “ contra proferentem” to be, and when it may be applied to get at the intention of the parties in public or private grants. Were we obliged to apply the rule here, we should of course give the respondents the benefit of it, as under the grant of their ferry they represent the legislature. But we do not feel ourselves driven to this extremity. We believe we can dispose of this case upon principles more equitable and satisfactory.

Let us then take up the resolve of 1818, and see what are its provisions. It consists of two parts; 1st, a suppression of the two ferries “ by law established between the towns of Hartford and East Hartford,” and 2d, a declaration that l<rsaid towns shall not thereafter transport passengers across the river.”

If there was nothing here but the first part — the suppression of the ferries — we think it quite clear that these two specific ferries, and what is fairly included in or meant by them, are suppressed, and nothing more. This is the very language made use of, mid this language is fully satisfied by a suppression of the exact things mentioned; and when this is the case, no other construction is called for, as possibly the one intended though not expressed. These two ferries were known and recognized, if not originally established, by the law of the state. They were local, definite, and specific, as is every ferry at this time throughout the river — as much so as a bridge, canal, turnpike or railroad. There are on the river some ten or fifteen ferries, each one of which has its name or description in the public statutes; each has its commissioner, its rate of toll, its kind of boat, whether horse-boat, steam-boat, or scow-boat, its number of ferrymen, its implements for ferrying, its wharves, its places of embarking and landing, and its “ post,” with a board thereon containing the several fares allowed by law for such ferry, written in large letters, set up at the place where passengers enter the boat; and what is quite important to the identity of the ferry, all public ferries are expressly forbidden unless they be first authorized and established by law. .The statute is particular to declare that there shall be no private ferries for passengers between the ferries established and to be kept up by law; nor can any fares be taken for public ferrying but such as are allowed by law. Here, then, we have all the characteristics which enter into the identity of a public ferry ; and such a ferry, at common law, is but a portion of the public franchise carved out and allowed to the town or corporation, upon the terms and under the supervision aforesaid. A ferry is defined at common law, to be “ a liberty by prescription, or the king’s grant, to have a boat for passage upon a river, for carriages, horses, or men, for reasonable toll.” Jacob’s Law Dict. “Ferry.” Burrill’s Law Dict. id.

Besides, these two ferries are, in the very resolve under consideration, said to be “ the ferries by law established.” When, then, they were suppressed, nothing was suppressed but what belonged to, or was embraced in, these ferries. If more was intended, it was most natural and easy to have said so. It is quite possible nothing more was intended than was expressed. Very likely it was supposed that no other ferry could be established between these towns, considering the character of the meadows on the opposite banks of the river, as indeed was suggested by one of the counsel of the petitioners; or that a new ferry anywhere between these towns would not thereafter be called for as necessary or desirable. But on this point we are not at liberty to speculate. We can only take the resolution as it is written. Indeed, were we to launch into any such speculation, it is doubtful if we or others should harmonize in our views as to what was anticipated as to other ferries.

Once more, if I do not mistake the views of the court, we admit that the suppression of these ferries is a discontinuance of the ferries, substantially, as understood and used. We do not mean by the term “ ferry ” a mere naked line, or right to pass from the exact landing on one side of the river to the exact landing place on the other, excluding the right to shift a few feet or rods, the better to accommodate the same line or course of travel; such variation being nothing more than the travel of a few more feet or rods to enter or leave the ferry boat. The identity of the ferry is still preserved. To this degree, it would seem, we must allow the suppression to be carried, or else nothing is effected of the least conceivable interest to the bridge company. If a new ferry may be set up twenty feet below the old ones, for the same purposes, the suppression amounts to nothing.

And here, it is quite possible, though we have not noticed any such distinction in the books, that there is a difference in this respect between suppressing a franchise and granting one de novo. In the latter, it seems now to be well settled everywhere, that the grant of a franchise, as a bridge, canal, turnpike, railroad, or ferry, is a grant of right to construct and use the specific thing granted; and that, unless there be words restricting the legislature, they are at liberty to license other bridges, canals, turnpikes, railroads or ferries, according to the public exigency and their discretion, for it must be presumed that they are of opinion that such a necessity does exist.

Let this point, however, be as it may, we are satisfied that the new ferry here does not come within any such implied restriction. It is not the ferry or ferries which were suppressed. It is not so found by the court below, nor in justice could it be upon the facts stated and submitted to us by the judge. The new ferry might very properly have been needed had the old ferries not been suppressed. It accommodated a different line and course of travel, and has become most convenient, if not necessary, in consequence of a state of things which did not exist in 1818. We believe the old ferries would not fill the place of the new one, nor would the new ferry fill the place of the old ones. The new ferry takes none of the northern travel, and but a small portion of the eastern, to and from the city of Hartford, but to a considerable extent that which has grown up in consequence of changes in the south part of the city, and what would have passed over the ferry between Glastenbury and Wethersfield. Besides, it shortens very greatly the distance to be traveled in passing to and from Hartford, from the south-east part of Hartford county. Undoubtedly the new ferry takes some of the travel which would otherwise pass over the bridge, and perhaps over the old ferries, if they were in use.' But this is not the criterion. Any new ferry on the river within several miles would have the same effect.

And further, we can not but think, in looking at the constitutionality of this new ferry,' that a good deal must be left to the discretion of the legislature. We ought to assume that they will act fairly and intelligent!y in the exercise of their constitutional powers, and will not intentionally disregard or transcend them. It is their bounden duty to provide needful and convenient bridges and ferries for the use of the people. In fulfilling their duty, in this instance, they have found the new ferry to be convenient, if not necessary, to a portion of their constituents, and who shall call in question the correctness of their conduct, unless they have exceeded their powers ? In their judgment, allow us to repeat, they regard the bridge as insufficient for the reasonable wants of those for whom they legislate; and if this is so, and they are not restricted in providing for those wants, they should, of course, license the new ferry without damages.

While we are bound scupulously to preserve unimpaired the rights of the bridge company, and not yield to the clamor which so frequently is gotten up against corporate rights after large expenditures have been made upon the faith of charters and solemn covenants, we must be equally vigilant and careful of the just rights of the public; and whenever we are convinced that such a right remains to them, we shall neglect our duty if we overlook it, or thwart the design of the legislature in allowing the public to use it. It is however a well settled principle of judicial construction, that before an act of the legislature ought to be declared unconstitutional, its repugnance to the provisions or necessary implications of the constitution should be manifest and free from all reasonable doubt. If its character in this regard be questionable, then comity, and a proper respect for a co-ordinate branch of the government, should determine the matter in favor of the action of the latter.

We come next to a consideration of the second part of the resolve — “ and said towns shall thereafter never be permitted to transport passengers across said river”

It has been said that these words, taken in connection with what precedes them, may be considered as declaring or defining the old ferry franchises to be co-extensive with the towns of Hartford and East Hartford, and, therefore, that the suppression of the ferries virtually extinguishes the entire franchise, or removes it beyond the power of the legislature unless damages are given. This construction we can not sanction. It is unnatural and constrained; and, besides, it is not called for. For the reasons already stated, the old ferries were definite, specific and local. Hence we can not allow that, by mere inference, they are to be changed in all the characteristics which give them identity, especially as the resolve provides that in case of neglect by the bridge company to keep the bridge and causeway in repair, the said ferries shall revive and may be used as before, restoring nothing but what had before been taken away. Besides, there are other interpretations much more sensible and obvious which we should prefer to adopt. We are much inclined to believe that these words are but a circumlocution of the same idea before expressed, that these ferries shall be stopped, and these towns (who alone owned them) shall not open them again for public use. This is the most intelligent construction of the words, and it is one that satisfies the scope and import of the language made use of. We do not know that any more than this was supposed or understood by these words of restriction in favor of the bridge company. Nor can we say, if more than this had been asked for, that the people would have consented to the legislature’s granting it. It is not altogether unworthy of notice, that no suppression of the ferries was asked for or enjoyed during the continuance of the first bridge from 1808 to 1818. And we can well imagine that it might not have been easy to induce the legislature, understandingly, to tie up their hands for all time as to new and different ferries at other places in the towns, whatever might be their growth or the extent of their business or their relations to the other towns and the public generally. It might possibly have been intended, but, under the circumstances, we think it would have been an extraordinary stretch of legislative action, and should not be presumed, when it could have been clearly expressed if intended.

In order to reach the conclusion to which we have come, we do not find it necessary to look out of the resolve itself; much less to call in aid the rule “ contra proferentem,,” which latter, if applied, would undoubtedly decide the question at once for the respondents.

We will next look at the words by themselves, and see if this will help the petitioners’ claim. It has been most strenuously urged that they amount to a covenant that neither the towns of Hartford and East Hartford, nor any person or persons whatever, shall thereafter carry passengers across the river within the limits of the two towns. Certainly the words are not apt or appropriate to express any such covenant. And if such was the intention of the legislature, nothing could have been more easy than to have expressed it; and we must think it would not have been omitted. This very legislature had their attention called to this distinction, for in the charter of the Washington Bridge Company, passed in 1818, they declared, after suppressing the ferry in that case, “ that no person shall erect or establish any ferry across said river (the Housatonic) at any place below the ferry of Oronoque.” So in the charter of the Enfield Bridge Company, in 1798, in order to guard the grant in that case from competition, the legislature provided that “ no person or persons shall have liberty to erect another bridge anywhere between the north line of Enfield and the south line of Windsor.” The absence, then, of kindred words in this resolution, is a very strong argument in the respondents’ favor, that nothing of the kind was intended.

It may be well, perhaps, at this place, to inquire briefly into the nature and history of ferries on this river, as such inquiry may aid us somewhat in our investigation. Very little is to be learned from the records of the General Assembly. We find in our earliest statutes, and the same is true of the present statutes, that towns were required to keep and maintain such ferries as “ have been or shall be established by law ; ” and it is further declared that there shall be no public ferries besides those which are so established. Accordingly, from time to time, ferries have been established on this river by the legislature ; and to this day, each ferry is known by its name or description in the law which created it. Each one is located, fixed and defined, and is placed under the control of a commissioner appointed by the legislature. Ferries have been not only created, but have been modified and suppressed, at the pleasure of the legislature, like public highways, which in fact they are. Each one is confined to such tolls, and subject to such regulations, as are prescribed by the statute. It appears to us from all we can learn on the subject, that ferries were at first, as many of them still are, considered and treated as burthens or duties imposed on towns by the legislature for the benefit of public travel; but the early history of ferries in this state is so obscure that we know nothing of some of them but that they have become and are now held to be the property of individuals or of towns, or perhaps rather in the nature of property whose ownership rests upon immemorial usage or prescription, if it be proper to use that word in relation to a practice begun and continued as a duty. This is substantially the view taken of ferries by this court, and by the supreme court of the United States, in the case of the present plaintiffs against the town of East Hartford, reported in 16 Conn., 149, 17 id., 79, and 10 Howard, 511. See further, Adams v. Pease, 2 Conn., 480, Enfield Toll Bridge Co. v. Hartford & New Haven R. R. Co., 17 id., 60, Aiken v. Western R. R. Corporation, 20 N. York, 370, and Hargrave’s Law Tracts, ch. 3, pp. 8, 9.

Bridges ever have been, and still are, as is obvious we think from the statute book, considered to be public local burthens. We find towns are obliged to make and maintain them as much as highways, and it is just, because they are highways or parts of highways, that the expense of making and maintaining them is cast upon the towns. Where a stream divides towns, bridges are to be maintained at their joint expense. The same is true of ferries, only they are to be first established by law. The Connecticut river is a great natural highway, and has always been treated as such, whether passed over in the line of the stream or across it, and this highway, like every other public franchise, belongs to and is vested in the state, to be regulated for the benefit of all the people, and it can not be appropriated to an exclusive use but by the consent of the legislature. See Aiken v. Western R. R. Corporation, supra.

The general power of the legislature over streams and rivers within their limits, as natural highways for general use, is not and can not be denied by any intelligent jurist. If any one wishes to learn what is the settled doctrine of the common law, and on what grounds it rests, we refer to the cases already cited, and to some few more of the many to be found in the books. Palmer v. Mulligan, 3 Caines, 314; Hooker v. Cummings, 20 Johns., 100; Canal Commissioners v. The People, 5 Wend., 444; and Commonwealth v. Charlestown, 1 Pick., 180, 188. In the Enfield bridge case, supra, Williams, C. J., in giving the opinion of the court says, (17 Conn., 64,) that ferries and bridges have been ordinarily provided and regulated by law, here and elsewhere ; and he cites numerous authorities to sustain this position. He further says that “ it is a well-settled principle of common law, that no man may set up a ferry for all passengers, without prescription time out of mind, or a charter from the king, because it doth in consequence tend to a common' charge, and is become a thing of public interest and use, and every ferry ought to be under a public regulation.” Judge McLean, in Bouman's Devisees v. Wathen, (2 McLean, 383,) says: — “ And for this accommoda tion of the public, government is not only authorized but bound to make suitable provision.” It is on this ground that ferries are licensed in behalf of individuals and corporations upon the terms stipulated in the grant. If then it is the duty of the government to provide ferries and bridges and regulate them, it must follow that an individual without license can not establish a ferry or a bridge ; and as to ferries particularly, there is a positive prohibition against their establishment without special license in this state. Rev. Stat., tit. 16, § 5.

In this view, it is obvious that the towns of Hartford and East Hartford have never had a right to maintain a public ferry except at the two old ferry places, where we suppose they did acquire a right by usage or prescription ; and therefore they could not complain if other ferries were set up by the legislature at other places ; nor can the bridge company complain, so long as the old ferries remain suppressed, and no other ferry is allowed which is substantially the same with them. If the last clause of the resolve means anything more than that the towns of Hartford and East Hartford shall not use or enjoy the old ferries, we do not know what that meaning isfor certainly nothing more was taken from them by suppressing the ferries. The duty of the legislature, as to the remainder of the general franchise, continued as before, under the limitations already specified; and, saving that limitation, they may declare how and when it may be used by a different and distinct ferry.

The prayer of the bill must be denied.

In this opinion Hinman and Sanford, Js., concurred. Storrs, C. J., dissented.

Advice that bill be dismissed.