The Chancellor.
The question arising upon this motion, is, whether the employment of the steam boat Bellona, by the defendant, in the transportation of passengers between Elizabethtown Point and the city of New-York, with, the assistance of the steam boat Nautilus, is not a breach of the injunction heretofore granted in this cause.
It has been already declared, that the plaintiff was entitled, under "a grant from Livingston and Fulton, to the exclusive right of navigating steam boats upon the waters or this state, on the route or passage between the city of NeioYork and Elizabethtown, in New-Jersey. Neither the representatives of L. and F., nor any other person claiming under a subsequent grant from them, or acting without such grant, could interfere with, or disturb the plaintiff in the enjoyment of his exclusive privilege. This Court is specially required, by statute, to protect, by injunction, the steam boat monopoly granted to L. and F., from all disturbance or invasion. It was observed, when the decretal order was pronounced, on a former motion in this cause, that the grant under L. and F., of an exclusive right to run steam boats between New-York and Elizabethtown, was intended to comprehend the entire benefit of all the travelling* and passengers going to and from Elizabethtown and New-York. It meant to embrace the whole stream of intercourse between these two places. It included the use of the waters, on the usual passage.between those places, to the entire and. [180]*180absolute exclusion of the use of these waters, (so far as the jurisdiction of this state extended,) on such a passage or , route, by any other steam boat. It necessarily, and from its very nature, as an exclusive grant, excluded all contiguous and injurious competition.
It appears to me, therefore, that the attempt of the defendant to transport passengers between Elizabethtown and the city of New- York, by the aid of the Nautilus, is a violation of the plaintiff’s exclusive right, and an evasion of the spirit and intention of the injunction. The Nautilus, employed under his procurement, and by an arrangement to which the defendant was a party, became, for this purpose, and for the occasion, his boat Any other construction might render the grant from L. and F., to the plaintiff, vain and illusory. Whatever pretensions the Nautilus may have to navigate the waters of this state under L. and F. (and she can have no right but under them,) these pretensions cannot interfere with the right of the plaintiff, to the exclusive navigation between Elizabethtown, and New-York, because his is the prior grant; and what L. and" F. could not do themselves, they could not do by their assignee. The assignee can only take what they were competent to give, and they had already parted with their right to the navigation in question.
The right of the plaintiff to transport passengers between New-York, and Elizabethtown, may be compared to a right of ferriage between two given points; and it is well settled, that where an exclusive right of ferriage exists between two places, no rival ferry can be set up within the same course and line of travel. The just and rational principles of the common law considered every such attempt as a violation of right. Indeed, it must be plain and obvious to the common sense of every man, that the defendant is here doing, with the assistance, and under the cover of the steam boat Nautilus, what he cannot do directly with his own boat, the Béllona, and yet that the result, and the injurious effects to [181]*181the plaintiff, are precisely the same. The Nautilus has no more right to be employed in the ferriage belonging to the plaintiff, than the Bellona, and yet she is so employed by the act and procurement of the defendant. The two boats, by their joint and concerted operation, are engaged in the very business exclusively granted to the plaintiff. They are engaged in transporting passengers to and from Elizabeth-town and New-York, and it would be a reproach to the justice of this Court, if such a contrivance could be successful.
The circuitous route between Elizabethtown and New-York, by the way of the Quarantine Ground, is equally a violation of the right of the plaintiff, and of the injunction which was intended to prevent it. Such a small and unessential deviation from the direct route, cannot vary the nature of the act so long as the intention is still the same.
The object appears equally to transport passengers and carry on the travelling between New-York and Elizabeth-1 town, and that design cannot lawfully be pursued by any person but the plaintiff, because he is in possession of the exclusive right. While that is the object of the circuitous, route, the injury is the same, and the abuse equally within the reach of the injunction. In short, every effort and arrangement, however specious or well devised, for the regular and connected transportation of passengers between. New-York and Elizabethtown, by steam boats, is a trespass on the exclusive right of the plaintiff, and must now be abandoned.
But the defendant, and one of his agents, rely for their excuse upon the impression which they had received of the decision made by me in. the case of Vanderbilt.
There was considerable desultory conversation, in the course of the argument in that case; and it is probable that [182]*182I may have made observations which misled the defendant, The nature and extent of the plaintiff’s right had not then been discussed and duly examined; and what I may have mast j,ave been in the course of incidental conversation, to which no importance ought to have been attached. The decision is upon record, and to that the party should have looked for his guide, and my opinion was reduced to writing at the time; neither the decretal order, nor the reasoning in support of it, afford the least colour for the impression which has been received.
It is this misapprehension of the defendant, and of Captain Vanderbelt that induces me to pause upon the motion for the attachment. I shall be content, therefore, with making a new order in the case, and of withholding the attachment, on condition of the defendant paying the costs of this application. ( The defendant, by his answer, admits knowledge of the injunction, and professes obedience to it.
The following Order was accordingly entered:
“ The motion for attachment in this cause being opened by the plaintiff in person, and séveral affidavits in support of the motion being read; and the said motion being opposed by Mr. S. Jones, counsel for the defendant, and several affidavits read on his part, and due deliberation being thereupon had, it is hereby declared, that the running or employment of the steam boats Bellona, Stoudinger, and Nautilus, or either of them in the said petition mentioned,, or any other boats propelled by steam, over waters within the jurisdiction of this state, for the transportation of passengers to and from the city of New- York and Elizabethtown, in the state of New-Jersey,
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The Chancellor.
The question arising upon this motion, is, whether the employment of the steam boat Bellona, by the defendant, in the transportation of passengers between Elizabethtown Point and the city of New-York, with, the assistance of the steam boat Nautilus, is not a breach of the injunction heretofore granted in this cause.
It has been already declared, that the plaintiff was entitled, under "a grant from Livingston and Fulton, to the exclusive right of navigating steam boats upon the waters or this state, on the route or passage between the city of NeioYork and Elizabethtown, in New-Jersey. Neither the representatives of L. and F., nor any other person claiming under a subsequent grant from them, or acting without such grant, could interfere with, or disturb the plaintiff in the enjoyment of his exclusive privilege. This Court is specially required, by statute, to protect, by injunction, the steam boat monopoly granted to L. and F., from all disturbance or invasion. It was observed, when the decretal order was pronounced, on a former motion in this cause, that the grant under L. and F., of an exclusive right to run steam boats between New-York and Elizabethtown, was intended to comprehend the entire benefit of all the travelling* and passengers going to and from Elizabethtown and New-York. It meant to embrace the whole stream of intercourse between these two places. It included the use of the waters, on the usual passage.between those places, to the entire and. [180]*180absolute exclusion of the use of these waters, (so far as the jurisdiction of this state extended,) on such a passage or , route, by any other steam boat. It necessarily, and from its very nature, as an exclusive grant, excluded all contiguous and injurious competition.
It appears to me, therefore, that the attempt of the defendant to transport passengers between Elizabethtown and the city of New- York, by the aid of the Nautilus, is a violation of the plaintiff’s exclusive right, and an evasion of the spirit and intention of the injunction. The Nautilus, employed under his procurement, and by an arrangement to which the defendant was a party, became, for this purpose, and for the occasion, his boat Any other construction might render the grant from L. and F., to the plaintiff, vain and illusory. Whatever pretensions the Nautilus may have to navigate the waters of this state under L. and F. (and she can have no right but under them,) these pretensions cannot interfere with the right of the plaintiff, to the exclusive navigation between Elizabethtown, and New-York, because his is the prior grant; and what L. and" F. could not do themselves, they could not do by their assignee. The assignee can only take what they were competent to give, and they had already parted with their right to the navigation in question.
The right of the plaintiff to transport passengers between New-York, and Elizabethtown, may be compared to a right of ferriage between two given points; and it is well settled, that where an exclusive right of ferriage exists between two places, no rival ferry can be set up within the same course and line of travel. The just and rational principles of the common law considered every such attempt as a violation of right. Indeed, it must be plain and obvious to the common sense of every man, that the defendant is here doing, with the assistance, and under the cover of the steam boat Nautilus, what he cannot do directly with his own boat, the Béllona, and yet that the result, and the injurious effects to [181]*181the plaintiff, are precisely the same. The Nautilus has no more right to be employed in the ferriage belonging to the plaintiff, than the Bellona, and yet she is so employed by the act and procurement of the defendant. The two boats, by their joint and concerted operation, are engaged in the very business exclusively granted to the plaintiff. They are engaged in transporting passengers to and from Elizabeth-town and New-York, and it would be a reproach to the justice of this Court, if such a contrivance could be successful.
The circuitous route between Elizabethtown and New-York, by the way of the Quarantine Ground, is equally a violation of the right of the plaintiff, and of the injunction which was intended to prevent it. Such a small and unessential deviation from the direct route, cannot vary the nature of the act so long as the intention is still the same.
The object appears equally to transport passengers and carry on the travelling between New-York and Elizabeth-1 town, and that design cannot lawfully be pursued by any person but the plaintiff, because he is in possession of the exclusive right. While that is the object of the circuitous, route, the injury is the same, and the abuse equally within the reach of the injunction. In short, every effort and arrangement, however specious or well devised, for the regular and connected transportation of passengers between. New-York and Elizabethtown, by steam boats, is a trespass on the exclusive right of the plaintiff, and must now be abandoned.
But the defendant, and one of his agents, rely for their excuse upon the impression which they had received of the decision made by me in. the case of Vanderbilt.
There was considerable desultory conversation, in the course of the argument in that case; and it is probable that [182]*182I may have made observations which misled the defendant, The nature and extent of the plaintiff’s right had not then been discussed and duly examined; and what I may have mast j,ave been in the course of incidental conversation, to which no importance ought to have been attached. The decision is upon record, and to that the party should have looked for his guide, and my opinion was reduced to writing at the time; neither the decretal order, nor the reasoning in support of it, afford the least colour for the impression which has been received.
It is this misapprehension of the defendant, and of Captain Vanderbelt that induces me to pause upon the motion for the attachment. I shall be content, therefore, with making a new order in the case, and of withholding the attachment, on condition of the defendant paying the costs of this application. ( The defendant, by his answer, admits knowledge of the injunction, and professes obedience to it.
The following Order was accordingly entered:
“ The motion for attachment in this cause being opened by the plaintiff in person, and séveral affidavits in support of the motion being read; and the said motion being opposed by Mr. S. Jones, counsel for the defendant, and several affidavits read on his part, and due deliberation being thereupon had, it is hereby declared, that the running or employment of the steam boats Bellona, Stoudinger, and Nautilus, or either of them in the said petition mentioned,, or any other boats propelled by steam, over waters within the jurisdiction of this state, for the transportation of passengers to and from the city of New- York and Elizabethtown, in the state of New-Jersey, whether such transportation be effected directly or circuitously, or by means of one or more boats, or by shifting from one boat to another, at any intermediate point between these two places, without the license or consent of the plaintiff or his assigns, is an infringement of his exclusive right to navigate, for those purposes, with steam boats, over the waters of this-state, between the cjty1 [183]*183of New-Yorh and Elizabethtown, and a violation of the injunction issued to + that exclusive right.
And it is further declared and ordered, that a copy of the said injunction, and of this order, or of any other order of this Court, in the premises, delivered to the acting master, or in case of his refusal, to recieve the same, left, in some conspicuous place, on board of the said steam boats, or either of them, or of any other steam boat employed, as aforesaid, shall be deemed and taken to be good service thereof, on the master of the boat in which the same shall have been so left; and further, that the service of the said injunction, or other order as aforesaid, on the solicitor for the defendant, shall be taken and deemed good service on the defendant.
And it is further ordered, that the rule to show cause in this cause, be. discharged, on payment, by the defendant, of the costs of this application, and on default thereof, that the attachment, as against the defendant, issue.”
He was the master of the Bellona, and was brought before the Court, on an attachment for disobeying the injunction before issued. Vide Livingston v. Ogden and Gibbons, ante, p. 48. Matter of Vanderbilt, ante, p, 57; and Ogden v. Gibbons, ante, p. 150—164.