McLeod v. Savannah, Albany & Gulf Railroad

25 Ga. 445

• Court: Supreme Court of Georgia
• Decided: June 15, 1858
• Status: Published

Opinions

By the Court

Lumpkin, J.

delivering the opinion.

This is a proceeding in equity at the instance of ffm F. Law and others to restrain by injunction tthe Savannah, Albany and Gulf Railroad Company from using a bridge constructed by them on the Great Ogeechee river; or by an alternative prayer, to compel them to pay damages for a disturbance of the franchise vested in complainants, as the assignees of Joseph Hill.

By an Act of the Legislature of Georgia, passed the 26th of June, 1806, the exclusive right of erecting a bridge over the great Ogechee, at a place designated in the Act, and on certain specified conditions, was vested in Joseph Hill, his heirs and assigns, Clayton's Dig. p. 298. The grant is in these words: “It shall not be lawful lor any person at any time or times to build any bridge or keep any ferry on the said river, great Ogechee, within five miles, either above or below said bridge, which is hereby exclusively vested in the said Joseph Hill, his heirs and assigns.”

The complainants aver themselves to be the assignees of Joseph Hill, the grantee; and that all the conditions of the Act obligatory on them, have been duly complied with.

By an Act of the Legislature, passed the 25th of December, 1847, and amended the 20th of December, 1857, a company was incorporated by the name of the Savannah and Albany Railroad Company; and invested with all the privileges of any other railroad company, for the purpose of constructing a road from Savannah or some point on the Central Railroad near Savannah to Albany on the Flint river, with express power to adopt such route as the company may select. The defendant has selected a route which crosses the great Ogechee river within five miles below the bridge erected by Hill, and now in the hands of his assignees, the complainants, over which their trains are carried in the prosecution of their business.

The complainants did not attempt to restrain the defendant in any other way, except by a written notice, from building the bridge ; a copy of which is attached as an exhibit to their bill. They now pray for an injunction to restrain the defendant from using their bridge, alleging its construction to be a violation of the Act of 1806; and an infringement upon their exclusive grant; or in the alternative, such pompensation by way of damages as a Court may decree to be fit and proper.

To this bill the defendant has filed a general demurrer, and the great question raised by the demurrer is, and which goes to the whole bill, whether the construction by the defendants of their road across the great Ogechee river within five miles of the old bridge is a violation of the exclusive right vested in the complainants ? If it be decided in the negative, the bill of course contains no equity.

That the defendants pass the great Ogechee river constantly with their locomotives and trains on a structure they have laid across said river within the limits secured to the complainants, is not denied. That this structure is not only called a bridge, but that it was erected for the safe and expeditious passage of passengers and freight, whether from greater or less distances, over this stream, in the cars or carriages, provided for that purpose, is not disputed. Still the defendant insists, that notwithstanding all this, theirs in not such a bridge as was contemplated by the complainants’ charterJ and upon this single point this case rests.

It is too late perhaps to deny, that the franchise granted in 1806, is a contract. The decision of the Supreme Court of the United States, in the celebrated Dartmouth College case, has imposed that doctrine, at least for the present, upon the Courts of this country, whether it be irreversibly established, time alone can show. Nor need counsel argue so earnestly, or declaim so eloquently, in favor of the inviolability of contracts. The sole inquiry for us is, the true exposition of the charter of 1806. Settle that, and the controversy in this case is ended. For while it is admitted, that individual interest must be subservient to that of the public, and must yield when the public necessity requires it; and that chartered rights no more than any others, are exempt from this paramount right of the State, to take private property tor highways or any other public purpose, still neither in this, nor any other ■constitutional government, will this be done, without malting to the individual aggrieved, just compensation.

Grant that the franchise in this case is as broad as complainants contend it is, still, if a crossing for the Savannah and Albany Railroad would have been impossible at any other place, the old bridge site itself might have been seized and appropriated for this purpose, by virtue of the power of eminent domain residing in and reserved to the people of the State; malting due compensation of course to the proprietors.

We come back then to the enquiry, have the chartered fights of the complainants been violated by the defendant ?

No one pretends, that the structure erected over the Ogechee river, by the defendant is not a bridge. But is it a bridge in contemplation of the Act of 1806 ? Repudiating as I always do, the two modes of construing the statutes referred to by law writers, the one literal and the other liberal, I ask, as the only true guide, what did the Legislature mean ? For having ascertained that, we cannot bind them beyond what they intended to bind themselves. Otherwise you. force upon the public the performance of a contract which ¡they never made.

The Legislature granted to Joseph Hill the privilege of erecting a bridge, and when from accident or decay, it became impassable, they granted also, the free and quiet enjoyment of a ferry on the same conditions as those of the bridge. They granted the privilege of erecting a toll bridge, capable of sustaining and passing all carriages in common use, at the date of the Act; and in the contingency stated, of keeping a ferry for the purpose of passing such carriages. They allowed, to Joseph Hill, the same tolls that were already allowed to Wade Hampton and James Gunn, by the Act of 1790; and I would here remark, that a charter had been granted to Wade Hampton, and General James Gunn, and a bridge was erected; but the franchise to these grantees was revoked by the Act of 1806, on account of alleged misuser; but without any judicial forfeiture having been declared.

But to resume. The Legislature in the grant to Hill specified the kind of bridge to be built, and the purposes to which the exclusive privilege applied, by the tolls provided for in that Act, which were-, for loaded wagons, and other four wheeled carriages; for empty carts and drays; for a man and horse; for foot passengers; for black cattle; for hogs; sheep and goats; and for rolling hogsheads drawn by horses.

These provisions are sufficient to satisfy any one, that the exclusive privilege granted to Joseph Hill, was that of erecting a bridge for the transit of carriages then in common use ; and for the other articles enumerated in the Act of 1790; and that consequently the protection secured to him. by the 5th section of the Act of 1806, was a corresponding protection ; that is, a protection against the erection of any similar bridge used for similar transportation; and that it cannot be extended without doing violence to the obvious meaning and true intent of the grant, to the construction by a railroad company, under Legislative sanction and authority, of a bridge for the sole purpose of affording transit for its cars.

But this point is put beyond all dispute from the fact,' that railroads at that distant day, were wholly unknown in this country. Therefore the Legislature could not have meant to guard against interference by a mode of crossing, of the very nature and existence of which they had no knowledge.

Whether then we look to the language of the Act construed with reference to the subject matter, to the intention of the Legislature, interpreted by the state of things existing at the date of the Act, to the situation of the parties, or to the thing granted — its nature and use at the time, it seems clear that the prohibitory clause in the Act of 1S06, cannot, in justice and fairness, be made to extend to a bridge, erected for the transit of the cars of the railroad company?, and for tha purpose alone; the said clause being utterly irrelevant to that sort of bridge.

But it is insisted that all this can make no difference, and the question is propounded, can a grant of this kind be infracted, because an advantage not contemplated at the time,,, may result from its violation. It is asked, is there any implied condition in such a grant, that upon some new improvement being made, the grant should be void ?

Without stopping to examine whether this be a candid mode of meeting the difficulty, we understand it to be now solemnly settled, that the grantee in such a case as this, can take nothing by implication. Charles River Bridge vs. Warren Bridge, 11 Peters, 420 ; Shorter vs. Smith, 9 Ga. R. 517. And further, that the rule which requires the grant to be taken most strongly against the grantor, does not apply to & Legislative Act. But that on the contrary, any ambiguity in the terms of a charter, shall operate against the grantees j and that grants of exclusive privileges to corporations or individuals are to be strictly construed. And that if the terms of the contract are doubtful, the doubt must enure to the-benefit of the public. McLeod et al. vs. Burroughs, 9 Ga. R. 220, 221, 222 ; Justices of the Inferior Court vs. Plank Road Company; 9 Ga. R. 479, 480 ; Devarris on Statutes, 40, 41, et seq. 48; Mayor of Macon vs. M. and W. Railroad, 7 Ga. R. 227.

Our conclusion is, that the structure on the great Ógechee river by the defendant, is part of the railway only; and not a bridge in the sense of the charter of 1806. Certainly it is not a toll bridge in the meaning of the franchise granted to Joseph Hill. That if the value of the complainants’ franchise be impaired by the Acts of 1847 and 1851; still this does not impair the obligation of the contract entered into by the State, with Joseph Hill; there being nothing in that contract to deprive the people of Georgia of the benefits of the new system of intercommunication introduced by the invention of railroads ; nor to forbid the passage of a law authorizing the construction of a railroad at the place in question. Indeed for myself, I am strongly inclined to think, the Dartmouth College case to the contrary notwithstanding, •that it was not in the power of the Legislature of 1806, to make -a contract, of the character that this is claimed to be, •which should have the effect of taking from their successors, for all coming time, the right of opening any such new methods and channels of trade and travel, as their posterity, at the end of a half century, might deem essential to the comfort, convenience and prosperity of the present and future generations.

It is yielded in the argument, that it is not the line of travel, but the right of portage merely, that has been granted to the complainants; and that the defendant could tunnel the river and cross immediately under the complainants’ foil bridge. In my judgment, this surrenders the whole case. For we have seen, that there is no such magic in the mere ■word bridge, that can constitute the right to interfere in this case.

On the one hand, the railroad bridge can be used merely for the appropriate purpose of passing locomotive engines, and trains of cars on their way between the termini of the road and the various intermediate stopping places; and is Incapable, as a bridge, of being used for the passage of any vehicle,-animal or e?en foot passenger for whose passage fhe complainants are entitled to receive toll: and therefore does not violate the charter granted to Hill. And on the «other hand, complainants’ bridge has not the capacity to carry over the river the company’s engines and trains; and even if they could, it would be questionable, whether they would foe entitled to collect toll for the same. The franchises are totally different and do not interfere the one with the other; what is the defendant to do ? They have a right of transit across the river. The complainants cannot and will not pass them. Are they not entitled to provide the means of crossing themselves ? A caravan arrives with an enormous elephant, the old bridge is too weak to bear the weight of the animal. The proprietor refuses to put him over. Have not the owners a right to provide the means by flat or otherwise to transport their property?

But we forbear to discuss the question. The identical principle involved, has come before the Courts of New York, and been solemnly adjudicated adversely to the claim setup by the complainants in their bill. In the case of the Mohawk Bridge Company against the Utica and Schenectady Railroad Company, 6 Paige, 564. Chancellor Walworth says: "Neither is the Legislature deprived of the power to provide for the conveyance of freight or passengers, from one part of the State to another, by an improvement which was entirely unknown, at the time, when the grant to the bridge company was made. And if the grant had in terms given to the corporation the exclusive right of erecting a toll bridge across the river at Schenectady, this subsequent grant to the railroad company to cross the river with their railway from Schenectady to Utica, and to transport passengers thereon, in the ordinary course of their business, in the conveyance of travelers from one place to another, would not have been an infringement of the privileges conferred by such prior-grant; as the railroad bridge would not be a toll bridge, within the intent and meaning of the grant to the first company.”

I am aware that a decision has been made in Connecticut counter to those in New York. But it is New York, and not Connecticut, that has given the law to the States of this Union, as the history of our jurisprudence will demonstrate.

It is needless to kick against the pricks. Old things must give place to new. The forest must yield to the waving harvest and golden fruit; the red man of the woods to the sturdy and stalwart Saxon; the turnpike to the canal, and both to the railway. The complainants’ were free to abandon their bridge at any time, as did Hampton & Gunn, and there was none to molest them. There was, in this respect? no mutuality in this, so called, contract. And if their profits

have been impaired by this new mode of travel and transportation across rivers and morasses, they stand in no worse situation, and are no more entitled to compensation, than are thousands of individuals throughout the land, who are daily-subjected to losses and ruin by new inventions and improvements, superseding and displacing those already in use. They have reaped no doubt, long ago, twice-told, the money they have expended, and should be satisfied with a monopoly of a half a century, granted improvidently, if not illegally — the prior right to Hampton & Gunn, never having been judicially forfeited. 3 Kent, 458; Thompson vs. The People, 23 Wendell, 579, 580, 596.

By my direction, my friend Mr. Smale, assistant Reporter, has inserted entire, in the bill of exceptions, the admirable judgment pronounced in this case by our brother Fleming 5 from whom, whenever I have the misfortune to differ, which has been but seldom, I suspect the soundness of my own opinion. Would that the briefs of the able counsel who so thoroughly investigated this question, were allowed by latvio be reported. Their omission in this and other cases is an irreparable loss to the profession. To their labors I am greatly indebted for the alleviation of my own.

Judgment affirmed.