State Highway Board v. Willcox , 168 Ga. 883 ( 1929 )

Hines, J.

These cases are in this court upon writs of certiorari to review the decision of the Court of Appeals in Willcox v. State Highway Board, 38 Ga. App. 373 (144 S. E. 214). The State Highway Board instituted proceedings in the superior courts of Telfair and Jeff Davis Counties for the condemnation of certain lands for a right of way for a State-aid road, for a bridge-site across the Oemulgee Elver, including its abutments and approaches (said bridge forming a link in said road), and for material used in the construction and building of said road. The particular lands sought to be condemned are portions of two tracts which lie on both sides of said river and are jointly owned by J. Clyde Willcox and I. L. Cook. These owners operated a public ferry over the river, the landings of which were on the tracts of land owned by them. In December, 1917, Willcox obtained from the commissioners of Telfair County a license to operate this ferry, and transferred a half interest therein to Cook. They began to operate this ferry in May, 1918. Hilton owned and operated a ferry over this river about 100 yards from the ferry operated by Willcox and Cook. The operation of the two ferries was unprofitable, and Willcox and Cook bought out Hilton, paying him $2,500 for his ferry. The Hilton ferry was discontinued. The road in question is the State highway running through McKae and Lumber City and crossing the river to Hazlehurst, and has been a State highway since January 1, 1922. On October 12, 1923, it was designated by the State Highway Board as a Federal-aid national highway. It begins at the Georgia-North Carolina line en tour from Murphy, North Carolina, and runs through Blairsville, Gainesville, Athens, Madison, Gray, Macon, Perry, Hawkinsville, Eastman, McKae, Lumber City, ITazlehurst, Alma, Waycross, Folkston, on to the Florida line.

After Willcox and Cook bought out Hilton, their ferry began to make money; and thereafter it proved very profitable. Between 1922 and the cessation of its operation, the ferry produced a gross income of $40,000. In 1925 the gross income was $14,119.76, and the net income was $12,384.38. The gross income from January 1, to April 22, 1926, was $3,064.60. The bridge was opened to the public on the latter date, and the ferry was then abandoned. The ferry-site is located some distance from the right of way and the bridge-site sought to be condemned. The State was not seeking to condemn and take any portions of these lands used as a ferry-site; and the lands sought to be condemned and taken as a right of way for the highway and for the bridge-site do not in any way interfere with the physical operation of the public ferry of these landowners. In its decision the Court of Appeals in effect holds that these owners are entitled to be compensated for the damages sustained by them arising from the loss of profits due to the erection of this public bridge across this stream, and its free nse by the public. It is this ruling and certain conclusions which led up to it which we are to review in this case. The far-reaching consequences of the decision by the Court of Appeals make it necessary to give careful and serious consideration to this matter.

It becomes necessary, first, to determine whether individuals who own lands on both sides of a stream have the right, as one appurtenant to the lands so owned by them, to operate a public ferry, without a license or franchise from the State or its constituted authorities, authorizing them so to do. It is urged that such owners have the right to operate a public ferry regardless of whether they have .a license from the State to do so or not, and that they have this right under the act of 1850, which is now embodied in section 761 of the Civil Code. In other words, counsel for the landowners contend that this act grants such privilege. The code section is as follows: “Any person who may be the owner of any land through which a stream may pass, on both sides thereof, may establish any bridge or ferry thereon, at his expense, and may charge lawful toll for crossing, according to the rates of other bridges and ferries on the same stream, or, if none other, the customarj^ rates over such streams elsewhere.” Section 3639 of the Civil Code is as follows: “The right to construct a bridge or establish a ferry for private use, across a watercourse within or adjoining lands, is appurtenant to the ownership of the land; but the right to establish and keep a public bridge or ferry is a franchise to be granted by the State. Where such a grant interferes with the owner’s right of exclusive' possession, just compensation to him must be first made.” In Greer v. Haugabook, 47 Ga. 282, this court held that section 761 of the Civil Code is to be construed in harmony with section 3639; and so construing them, this court held that the owner of lands on both sides of a stream could not establish and operate a public ferry over the stream without a grant from the State. In Whelchel v. State ex rel. Wiley, 76 Ga. 644, this court held that the act of 1850 “merely grants the privilege to an owner of land on both sides of a stream to pass from one side to the other by a private bridge or ferry, and as an incident thereto to pass others upon the payment of toll.” This construction of the two sections was again followed in Hudspeth v. Hall, 111 Ga. 510 (36 S. E. 770), in which this court held that “The right to establish and maintain a public ferry is a franchise, which, in this State, can only be granted by the proper county authorities.” Also: “To lawfully establish and maintain a private ferry, no franchise is required. Such a right is incident to the ownership of land on both sides of a stream of water, to enable the owner to better use and enjoy his land. While the owner of a private ferry may lawfully charge and collect toll from persons incidentally crossing thereat, he can not maintain the ferry for use by the public at large.” This distinction was recognized in Futch v. Bohannon, 134 Ga. 313 (67 S. E. 814, 30 L. R. A. (N. S.) 462, 19 Ann. Cas. 982).

But counsel for the condemnees rely upon the decision in Averett v. Brady, 20 Ga. 523, as holding the contrary. The action in that case was ejectment for the recovery of land and. mesne profits. Among the mesne profits claimed by the plaintiff was the income from the operation by the defendant of a ferry on the premises. The defendant insisted that the right to operate a ferry was a franchise belonging to the State, and that no one could rightfully exercise the same without a legislative grant; and that for this reason no rents were due the plaintiff for the use of that which did not belong to him as a riparian proprietor. This court, in the opinion in that case, said: “A ferry may be granted to a corporation as well as to a natural person; and in England it has been held that an information in the nature of a quo warranto lies against them, if they set up an exclusive ferry without title, but it does not lie for merely taking money of passengers. (Grant on Corp. 195 (186)). This last decision would seem to recognize the right of the owner of land through which a stream passes to establish a ferry and charge tolls without the grant of such authority from the sovereign power. The act of our own General Assembly of 1850 gave this right.” The court was not dealing with the question whether a public ferry could be operated without a franchise from the State. On the contrary it is stated that the defendant was presumed to have had a franchise to operate the ferry. It simply held that the plaintiff as the owner of the land on both sides of the stream could operate a ferry and charge passengers, and that profits received by the defendant from such use of the plaintiff’s land could be recovered by the plaintiff under the act of 1850, although he had no franchise to operate a ferry.

So the right of the condemnees to .operate this public ferry is not one appurtenant to their ownership of the land on both sides of the river. The right to operate this public ferry is derivable solely from the franchise granted to Willcox in December, 1917. The measure of damages to which the condemnees are entitled for the land taken by the Highway Board for the erection of this public bridge must be determined in view of this fact. The measure of such damages can not be fixed upon the theory that their right to operate this ferry is one appurtenant to the ownership of the land on both sides of the stream, and that this right has been impaired by the erection of this public bridge.

So the question is narrowed down to this: If a franchise is granted to the owners of land on both sides of a navigable stream to operate a public ferry over such stream, which they esstablish and operate under such franchise, and the State thereafter seeks to condemn’for a public bridge land of the owners, not being the landings of or approaches to the ferry, but constituting a portion of a larger tract owned by them over another portion of which the ferry is operated, are such owners entitled to compensation from the State for loss of the profits from their ferry, due to the erection of a public bridge over which travelers can travel free? In other words, are such owners entitled to be paid the value of the land so taken, based in part upon profits which they received from the use of the ferry before the bridge was built by the State? The owners of this land have no exclusive right to operate their ferry over this stream. “No franchise granted by this State shall be held to be exclusive, unless plainly and expressly so declared to be in the grant.” Civil Code (1910), § 3640. It is not pretended that the franchise granted to them to operate this ferry plainly and distinctly declares that it should be an exclusive one. There is nothing in the grant to show that it was intended to be an exclusive one. The ancient doctrine of the common law that the franchise of ferry, although not declared to be exclusive, is necessarily implied in the grant, is inapplicable to the local situation and political institutions of this country. Shorter v. Smith, 9 Ga. 517. “A grant to establish and operate a public ferry does not carry with it any exclusive right.” Hudspeth v. Hall, supra. Ferries over watercourses making county lines may be licensed by either county. Civil Code (1910), § 757. Such license can not be granted for a period exceeding ten years, but may be renewed at the expiration thereof. Civil Code (1910), § 747, par. 3. The license in this case was granted to Willcox for the period of ten years. So the franchise to operate this ferry was not exclusive. Further, if there had been an attempt to grant an exclusive franchise, which would abridge the right of eminent domain possessed by the State, the grant would have been void. In paragraph 2 of section 1 of article 4 of the constitution of this State it is declared that “The exercise of the right of eminent domain shall never be abridged.” Civil Code (1910), § 6464. Again, the constitution declares that no law “making irrevocable grants of special privileges shall be passed.” § 6389. Clearly, then, the condemnees had no exclusive right or franchise to operate this ferry.

Not having an exclusive franchise, are the owners of this ferry entitled to compensation for loss of profits due to the erection of this free bridge by the State? The State has the right to erect bridges over its streams whenever and wherever the legislature may deem them necessary for the convenience of the public; and the right of eminent domain, by which the State is authorized to take private property for public use when the necessities of the country require it, is an inherent right of this State. The right to receive toll for the transportation of travelers and property over ferries operated over navigable rivers was, at the common law, a franchise of the crown. In this State it belongs to the people collectively. Young v. Harrison, 6 Ga. 130. In arriving at the value of the land taken by the State in this case for a public bridge, the element of value arising from the grant and operation of a franchise to the owners to operate a ferry is not to be taken into account. Where the grant is not by its terms exclusive, the legislature is not precluded from granting a similar franchise or from authorizing the construction of a rival way, which may greatly impair or even totally destroy the value of the former grant. So the State is not precluded, by granting a franchise of ferry, from constructing a rival highway and bridge which will greatly impair or even totally destroy the value of the ferry franchise. In Shorter v. Smith, supra, this court said: “The legislature or the inferior court [now the ordinary] as its agent, after having chartered a company ‘to make a particular improvement for public accommodation, without any provision that no rival improvement should afterwards be authorized, may grant a charter to another company or individual, to make an improvement of the same or of a different kind, to afford the like accommodation, however the work of the junior company might impair, or even destroy the profits of the elder.” In Hudspeth v. Hall, supra, this court again announced the same principle, as follows: “The right to establish and maintain a public ferry is a franchise, which, in this State, can only be granted by the proper county authorities. Such a grant carries with it no exclusive privileges, but such authorities ma}^ under the laws of this State, grant the right to establish over the same stream such additional public ferries as the public convenience demands; and if the first grantee is injured by the establishment and maintenance of another public ferry, he has no right of action to recover damages therefor; it is damnum absque injuria.” These decisions are in harmony with the great majority of the outside authorities, and are in accord with sound reasoning.

The construction of such rival way and bridge is not such a taking of the land pr franchise of the owners of the ferry as will entitle them to compensation. 20 C. J. 704 (§ 159) b. “It is competent for the legislature, after granting a franchise to one person, which affects the rights of the public, to grant a similar franchise to another person, the use of which shall impair, or even destroy, the value of the first franchise, although the right so to do may not be reserved in the first grant.” Ft. Plain Bridge Co. v. Smith, 30 N. Y. 44. A grant of a ferry franchise to meet the public convenience is not an exclusive grant that will, on account of the prohibition against impairing the obligations of contracts, preclude the legislature from granting a bridge franchise detracting from its value; and where a franchise has been granted solely for public convenience, there can be no damage for its depreciating in value from the subsequent grant of a similar franchise. Dyer v. Bridge Co., 2 Porter (Ala.), 296 (27 Am. D. 655). In the absence of express provision in the charter of a turnpike and ferry company that no competing turnpike, ferry, or bridge shall be erected near by, a grant to a county of the right to construct a rival bridge and turnpike does not impair the obligation of a contract, though it totally destroys the value of the former grant. Such grant is not a taking of the former franchise which entitles the owner to compensation for the resulting damage; and the depreciation of the profits of the former company can not be considered in determining the damage occasioned by an appropriation of a part of such company’s property. Hydes Ferry Turnpike Co. v. Davidson County, 91 Tenn. 291 (18 S. W. 626). The laying out of a new road, under authority of the legislature, which materially diverts the travel from the former one, under a prior charter granting the right to take tolls, not exclusive in its terms, is not an unconstitutional act. Salem &c. Turnpike Co. v. Town of Lyne, 18 Conn. 451.

When the State grants a franchise that is not in its terms exclusive, it may subsequently grant a competing franchise that may utterly destroy the value of the first franchise, without incurring any obligation to make compensation. Where the holder of a franchise has no contract with the State that he shall have a monopoly, the exclusive privilege which he has been fortunate enough to enjoy before a rival is chartered is not property in the constitutional sense; and the owner is not entitled to compensation when such privilege is taken away. 10 E. C. L. 76, § 67; Charles River Bridge v. Warren Bridge, 11 Peters, 420 (9 L. ed. 773); LaFayette Plank Road Co. v. New Albany &c. R. Co., 13 Ind. 90 (74 Am. D. 246); Clarksville &c. Turnpike Co. v. Montgomery County, 100 Tenn. 417 (45 S. W. 345, 58 L. R. A. 155); Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh (Va.), 42 (36 Am. D. 374). '“In proceedings to condemn land for highway purposes, the fact that the opening of the new highway across a creek will divert travel from the ferry of a landowner, the landing of which is located on ground not taken, does not entitle the landowner to consequential damages based on such injury.” Board of Supervisors v. Hasbrouck, 215 App. Div. 147 (213 N. Y. Supp. 337). “Loss arising from the competition of the condemning party does not constitute an element of damage, and the same is true of loss arising from increased competition on the part of others growing out of the use to which the condemned land is to be put.” 20 C. J. 781 (§ 234) c. '“In proceedings to condemn land, loss arising from the competition of the condemning party by means of the land taken is not an element of the compensation to which the landowner is entitled.” Philadelphia &c. Ferry Co. v. InterCity Link R. Co., 76 N. J. L. 50 (68 Atl. 1093). “Where a small part of a strip of land along a river bank used as a ferry and wharf landing is condemned for the purpose of erecting thereon the pier of a county bridge across the river, the owner of the land is entitled to be paid the value of the land taken, and the damages for the injury to the adjoining land as a wharf landing, but not to the loss by the depreciation of the profits of the ferry franchise by the opening of the bridge; the franchise itself and its exercise not being impaired by the existence of the pier.” Moses v. Sanford, 79 Tenn. 731. “Where the construction of a bridge will interpose no physical obstruction to the enjoyment of a ferrjr franchise across the same river, the owners of the ferry are not entitled to compensation for any incidental impairment of the profits of their ferry, resulting merely from the use of the bridge instead of the ferry by the public.” Piatt &c. v. Covington &c. Bridge Co., 71 Ky. 31.

In Richmond &c. Turnpike Road Co. v. Rogers, 62 Ky. 135, it was held: “1. In condemning land for a bridge across the Kentucky river, the jury can not allow to the proprietor of the land damages for any injury resulting to his ferry from the construction of the bridge. 2. In such cases the proprietor is entitled to the value of the land actually taken, and compensation for any incidental or collateral damage which the taking of it will produce to his other land.” In White River Turnpike Co. v. Vermont Central R. Co., 21 Vt. 590, it was said: “It is also settled that where there has been a legislative grant to a private corporation to erect a bridge, turnpike, or other public convenience, which is not in its terms exclusive, there is no constitutional obligation on the legislature not to grant to a second corporation the right to erect another bri4ge or turnpike for a similar purpose, to be constructed so near the former as. greatly to impair^ or even to destroy, the value of the former,' — and this without making compensation to the first corporation for the consequential injury.” “The grant to a corporation of the right to erect a toll-bridge across a river, without any restriction as to the right of the legislature to grant a similar privilege to others, does not deprive a future legislature of the power to authorize the erection of another toll-bridge across the same river so near to the first as to divert a part of the travel -yhich would have crossed the river on the first bridge if the last had not been erected.” Mohawk Bridge Co. v. Utica &c. R. Co., 6 Paige (N. Y.), 554. The people of this State, as we have seen, possess the right and power to erect bridges and operate ferries over the navigable rivers of this State. They can grant franchises to individuals or corporations to build toll-bridges over such streams, or to operate ferries over the same for toll. The grant of a franchise to do either is not exclusive, unless clearly so expressed. The grant of a franchise for either of these purposes, which is not exclusive, does not prevent the legislature from granting another franchise for either of said purposes. The legislature can condemn land for either of said purposes; and if the taking of land for either of said purposes does not prevent the exercise of the prior franchise, the same is not such taking of the property of the holder of the prior franchise as will entitle him to compensation.

But it is'insisted that this holding is in conflict with certain provisions of the Code and certain decisions of this court. In the first place it is urged that this holding conflicts with section 688, which is as follows: “In estimating the value of land when taken for public uses, it is not restricted to its agricultural or productive qualities, but inquiry may be made as to all other legitimate purposes to which the property could be appropriated.” The Code section does not sustain the contention. It means that, in estimating the value of land taken for this right of way and bridge-site, the jury should not be restricted to its agricultural or productive qualities; but the value of this land for all purposes should be considered. It does not mean that in estimating the value of the laird so taken the jury could take into consideration the losses arising from the operation of a ferry of the owners, due to competition springing from the use of this bridge by the traveling public. It is further insisted that this holding conflicts with section 781, which is as follows: “In determining the value of land taken for a bridge, its prospective value as a bridge-site, and its present value as a ferry, if one is in use, may be taken into calculation.” This principle is not applicable to the question which we are considering. The State is seeking to take land for a right of way and for a bridge, and its prospective value as a bridge-site and its present value as a ferry, if one was in use, should be taken into calculation. This does not mean that the value of another ferry-site and profits arising from the operation of such ferry should be taken into consideration in determining the value of the bridge-site which the State is seeking to condemn.

Again, it is urged that the contrary is held in Dougherty County v. Tift, 75 Ga. 815. In the first place, the opinion in that case was not by a full bench, which then consisted of three Justices. One of them was disqualified. Chief Justice Jackson concurred specially, and stated that he “ could not concur in all the reasoning of Justice Blanford,” who wrote the opinion of the court. If we can consider the proposition laid down in the second headnote of this case as that of the two Justices who presided, and not the individual opinion of the Justice who wrote the opinion, the opinion in that case is not binding as a precedent for any proposition therein laid down. Furthermore, the opinion in that case is not authority for the proposition that where land is taken for a public highway and bridge over a stream, the owners are entitled to have the diminution or destruction of the profits of their ferry, due to the erection of the bridge, considered in determining the value of the property taken by the State for its highway and bridge, when the franchise of the owners to operate the ferry is not exclusive. Again counsel for the landowners rely upon the decision in Mitchell County v. Hudspeth, 151 Ga. 767 (supra), for the proposition that the compensation claimed by the landowners should be allowed. The decision in that case does not support the proposition for which counsel for the eondemnees contend. When properly construed, that decision is not in conflict with what we hold; but if we held otherwise, that would make it in conflict with the former decisions of this court. It is to be noted that the court in rendering the decisions in Dougherty County v. Tift and Mitchell County v. Hudspeth made no reference to the decision in Shorter v. Smith.

The Court of Appeals held that the damages awarded by the jury were so small as to justify the inference of gross mistake or undue bias; and for this reason that court set aside the verdict. This conclusion was based upon the ground that the verdict in each case “shows on its face that the value of the land for ferry purposes 'and its value as a bridge-site were not taken into consideration by the jury.” In this we think that court was in error, in view of the ruling made above, that the landowners were not entitled to compensation for loss of profits from their ferry arising from the construction of this public bridge. If the jury could have legally allowed such compensation, then the criticism on the amount of the verdict in each case would be justified. If such compensation was not recoverable, then the verdict in each case was supported by the evidence. The verdict can not be held to be too small, under the evidence, unless the owners of the ferry were entitled to compensation for the loss of profits arising from the erection of this free bridge. There was evidence that the value of the land for all purposes would not exceed $35 per acre. This estimate was not based solely upon the value of the land for agricultural purposes, but for all purposes for which it could be used. So the verdicts should not be set aside because they were so small that they indicated mistake or undue bias on the part of the jury rendering them.

If the proposition announced by the Court of'Appeals in the headnote to its decision is to be construed to mean that compensation should be allowed the owners of this ferry for loss of profits arising from its operation due to the erection of this public bridge, then such ruling is erroneous in view of the rulings made in the second division of this opinion.

The ruling made in headnote 6 does not require any elaboration.

Judgment reversed.

All the Justices concur, except Russell, G. J., and Hill, J., who dissent.