Walker v. Armstrong , 2 Kan. 198 ( 1863 )

By the Oov/rt,

Cobb C. J".

Armstrong commenced his suit in chancery against Walker and several others, in the late District Court of the Second Judicial District of the Territory, before the enactment of the Code of Civil Procedure, praying an injunction to restrain the defendants from encroaching upon a ferry franchise claimed by him under an Act of the Legis. lature of the Territory of Kansas.

The cause was continued from time to time until after the Code took effect, and after that time an amended bill was filed, an answer thereto filed by Walker, to which Armstrong replied, and the case having been disposed of as to the other defendants, the issues between Armstrong and Walker were tried before the District Court of the first Judicial District of the State, sitting in Wyandotte County. A decree rendered pursuant to the prayer of the bill, perpetually enjoining Walker, which decree is brought here by petition in error for review.

The allegations of error in the petition are:

1st. That the facts set forth in the petition in the case-below, are not sufficient in law to maintain the action.

2d. That the finding of the Court was not sustained by sufficient evidence.

3d. • The Court erred in admitting parole testimony concerning the filing of the bond.

4th. The Court erred in admitting any testimony concerning the filing of the bond.

5th. The decision was contrary to the law of the land.

By Section 613 of the Code of Civil procedure of 1858, it is declared that the provisions of this Code do not apply to proceedings in actions or suits pending when it takes effect. They shall be conducted to final judgment or decree in all respects as if it had not been adopted.

But the provisions of this Code shall apply after judg-ment, order, or decree heretofore or hereafter rendered to the proceedings to enforce, vacate, modify or reverse it, except as provided in Section 645. This cause must therefore be treated as a suit in Chancery and governed in the District Coui’t, as to pleadings and practice by the rules applicable to chancery suits in this Territory prior to the talcing effect of the Code.

Under these rules we will consider the errors alleged in the petition.

1st. Are the facts set forth in the petition (more properly the amended bill,) sufficient in law to maintain the suit?

The bill states in substance that Armstrong is owner in fee of the land on both sides the river at the point where he claims his ferry franchise. That the Legislature of the Territory of Kansas by a statute passed in the year 1855, granted him the exclusive right to keep a public ferry at said point for fifteen years, with a right of landing extending two miles from the mouth of the river. That he gave a bond duly approved of as in said Act required, and that the defendants claim and exercise the right of ferrying passengers within the limits of his franchise, and receive pay therefor, and are constantly interrupting his rights in said ferry.

"Without the alleged franchise the acts complained of in the bill would be mere acts of trespass upon the real estate of Armstrong, and no such danger of irreparable injury appears as to require the interference of the Court by injunction. See Ross v. Page, 6 Ohio, 116.

The right to such relief, therefore, rests upon the alleged franchise.

An injunction is the appropriate remedy to protect a party in the enjoyment of a ferry franchise against continuous encroachments. Such continuous encroachments constitute a private nuisance which courts of equity will ‘abate by injunction. Tbe jurisdiction rests on tbe firm and satisfactory ground of its necessity to av-pid a ruinous multiplicity of suits, and to give adequate protection to the plaintiff’s property in bis francbise. See Livingston v. Van Inger, 9 Johns., 507; Croton Turnpike Compamy v. Ryder et al., 1 J. Or Rep., 611; 3 Kent, 458.

But to be entitled to sucb remedy tbe plaintiff must bave perfected bis right by first filling all obligations imposed upon him by tbe Act granting the-franchise as conditions precedent to bis right of exclusive ferriage, and bave placed himself'in a condition-to furnish to tbe public tbe facilities which tbe franchise was designed to secure; for while it is doubtless true as argued by tbe counsel for the defendants in error, that a francbise can be avoided only by tbe sovereignty by which it was granted, it is equally true that no francbise exists until 'all sucb conditions precedent, either express or implied, bave been performed.

' In this case tbe bill of complaint shows a legislative grant of an exclusive ferry privilege without any express obligations imposed upon Armstrong tbe grantee. There is, however, an implied obligation imposed upon tbe gran-fee of a ferry francbise by bis acceptance of tbe grant, to furnish the necessary means of transit for travelers. His privileges are granted for tbe benefit of tbe traveling public, and until be is prepared to serve them be has acquired no right to prohibit others from doing so.

There is no allegation in this bill that the plaintiff below has prepared tbe means for transporting passengers and freight, and is offering his services to tbe public as ferryman, or in other words that be has established a ferry, and we think tbe bill defective in that respect. -

Counsel bave called tbe attention of tbe Court, to tbe Statute, under which tbe francbise is claimed containing a provision that Armstrong shall execute a bond conditioned that he will comply with all tbe conditions and provisions of tbe apt.

Section four of said act provided for the filing of such bond with the tribunal transacting county business, and its approval by them, and Section five provides that until such tribunal shall be organized, said Silas Armstrong, his heirs or assigns, may be allowed to proceed under tins act, by filing said bond with the Secretary of the Territory. See Laws of 1855, pp 195-6, Sections 4-5. Section five is equivalent, to an express declaration that Armstrong shall not proceed under the act till the bond is filed and admits of no doubt that such bond must be filed before he can have any exclusive right of ferriage by virtue of the act.

But these provisions are not included in the bill, and therefore in determining whether the bill is good in law cannot be considered. The question is the same as that which arises upon a general demurrer, and is to be determined by the language of the bill only. If the Statute given in evidence differs from the one stated in the bill, 'that faet does not show a defect in the bill but a variance between the pleading and proof.

The objection of the plaintiff' in error, that the bill does not" show that sections two, three and six have'been complied with by Armstrong may be answered in ’the same way. It does not appear that there are any such sections," and consequently the bill can not be bad in law for not showing compliance with them. And had the act in question been pleaded in extenso, we think it would not have been necessary to plead performance to Sections two, three and six farther than to show as above indicated, that he had established, and was running a ferry pursuant, to the act.

■The Statute having given to all persons aggrieved by a violation by Armstrong of any of the provisions of those Sections a right of action upon the bond- provided for in the fourth Section for damages', and the State having the right to avoid the franchise for the same cause, (See People v. Thompson, 21 Wend. 285,) such violation will not justify the running of a rival ferry, {See Colton v. Houston, 4 B. Monroe, 288,) nor deprive the complainant of his equitable remedy, to restrain the running of - such ferry. In a case of gross and continued violation of the duty imposed by the Statute, the Court might, perhaps, refuse the injunction, and leave the owner of the franchise to his remedy at law. Rut in such case the complainant having shown the vesting of his title to the franchise, such subsequent breach of duty would be matter of defense, to be pleaded and proved by the defendant. We think there is no defect of substance in the bill, except the one above mentioned.

That defect would have been fatal on demurrer, but the attention of the Court below does not appear to have been called to the defect; and proof of the matter so omitted in the pleading was given without objection, and a decree will not be reversed for a fault in pleading, not brought to the notice of the Court below, where it appears that the defect in pleading, is supplied in the proof. See New York Central Insurance Co., v. National Protection Insurance Co., 14 N. Y., 85 ; Belknap v. Sealey id. 145 ; 3 E. JD. Smith, 280.

We proceed therefore to inquire. Is the evidence sufficient to sustain the decree ?

The bill of exceptions purports to contain all the evidence given on the trial, but does not contain the private Statute under which Armstrong claims his franchise, nor show that any proof of the existence of .such Statute was given. The Court, probably regarded the case as governed by the Code, and took judicial notice of the Statute pursuant to Section 133, of that act. By the former common law and chancery practice and pleading, it was necessary to plead and prove a private Statute as fully as a contract, between individuals. But by Section one of Chapter sixty-eight, Page 342 of the laws of 1855, which íb applicable to this case, it is provided that printed Statute books of the Territory shall be evidence of the private acts, therein contained. This act, facilitates but does not dispense with the proof of private Statutes, and the one in-question should have been proved by the production of the Statute book in Court, and the bill of exception should have shown that it was so proved, and what it contained.

By the record then, it appears that the leading fact in the case, the passage of the Statute granting the franchise, is wholly without proof to sustain it. But the counsel on both sides have referred us to the Statute, and argued the cause on the assumption that the Court would take judicial notice of it, doubtless regarding the case as one governed by the Code.

Whether under these circumstances the Court should take notice of the existence of the Statute and give it the same effect as if proved in the Court below, and the proof incorporated in the record, or should govern itself by the record, the view taken of other questions renders it unnecessary to decide; and we waive the discussion of the point and proceed to consider the objection to the evidence for insufficiency raised by the counsel upon the argument.

Under the statute in question, we have already observed that the filing of the bond required by section four is a condition precedent to the vesting of the franchise in Armstrong, and it follows necessarily that to make out a case for an injunction, such filing must be proved. The only evidence on that subject was the testimony of Armstrong himself, who testified that he filed a bond with the County tribunal of Leavenworth County, and that .its amount was two thousand dollars, but he did not know what was the condition of the bond and gave no further information in regard to it.

There was no proof whatever that the bond was conditioned as required by the Act in question, and therein the proof was defective, and the decree on that point not sustained by sufficient evidence.

The plaintiff claims that Armstrong failed to prove title to the land on the north side of the river.

Armstrong proved that he,was in possession of a portion of the north bank of the river, having prepared a landing there, and was claiming under a deed from Brown and wife.

That was jprvtna facie evidence of title. But the question of title other than possession, does not arise here. We have already held that Armstrong can not succeed in this case by virtue of title to the landing, but must succeed if at all, by virtue of his legislative grant of a ferry franchise. There is nothing in that Act requiring him to own the landings, and while he is in possession of them, and therefore in condition to land his passengers, his title to the land, is matter of indifference both to the public and the plaintiff.

This much Upon the evidence in support of the claim of Armstrong.

Walker claims to have a ferry right derived from the Wyandotte Indians, and existing prior to the legislative grant to Armstrong, aud- therefore entitled to preference. Eor the purpose of settling the law .of the case as far as joracti cable, we will consider that claim as it appears in Walker’s answer and the evidence.

By the treaty between the United States and the Wyandottes made .January 31st, 1855, by which the Wyandotte Nation, ceded their lands in the forks of the Missouri and Kansas Rivers to tíre United States, to be divided and conveyed to the individual members of the tribe, it was agreed that. “ four acres at and adjoining the Wyandotte .ferry, .across and near the mouth of the Kansas River, shall also be reserved, and together with the rights of the Wyandottes.in said ferry, shall be sold to the highest'bidder among the Wyandotte people, and the proceeds of sale paid over to the Wyandottes. On the payment of the purchase money in full, a good and sufficient title to be secured and conveyed to the purchaser by patent from the United States.”

On the 15th September 1856, such sale was made to Walker, the plaintiff, and on the 16th September 1861, a patent was issued by the United States to him pursuant to the treaty.

What right in the ferry had the Wyandottes at the time of the treaty to be so transferred ?

They were then running a ferry from the land so conveyed (which lies below and contiguous to the landing of Arfnstrong,) across the river and landing on land now owned by Armstrong, but then owned by the United States.

They were the owners of the ferry landing used by them on the north side of the river, and of the boats and fixtures for running the ferry, but there is no evidence of any right in them to a landing on the south side unless the landing was the mouth of a public highway.

Without examining whether it was so—or the question raised by Armstrong’s counsel whether a ferry-boat may be landed at the mouth of a public highway without the consent of the owner of the soil—but for the purpose of the argument concede both these propositions to the plaintiff, and it will then appear that the Wyandottes had such right, but the same right that all other persons had to land there, and none other; and such right would continue until by the Legislature an exclusive right of ferrying at that point was granted to another, and his right perfected by performance on his part, and no longer. An exclusive ferry right prohibits competitors from landing their boats in the highway or upon their own soil within the limits covered by the franchise, as fully as elsewhere.

The Wyandottes then had no right of ferriage good against a franchise granted by the Legislature, and it is hardly necessary to say, that Walker could get by his purchase from them no greater rights than they had to sell.

And it is equally manifest that the United States acting in aid of the Wyandottes in transferring their property to a purchaser, and conveying in the clearest terms only “the rights of the Wyandottes in said ferry,” did not thereby convey to Walker any interest or easement in their oivn land, afterwards conveyed to Armstrong. Parole evidence of the filing of the bonds required by the ferry charter was inadmissible. The bond should have been produced, or a case made for giving secondary evidence of its contents. But the exception appearing upon the records is too general to be available. It does not show on what ground Walker objected to the reception of the evidence. It might be on the ground that it was not the best evidence, or it might be on other and untenable grounds.

Had this objection been placed on the ground that the bond was the best evidence, it might have been obviated by production of the bond andva decaree will not be reversed for an error which might have been obviated by making the proper objection in the Court below. See Merrill v. Leander et. al. 6 N. Y. 168; 1 Cow. 87.

The point made in the petition in error, that the Court erred in admitting any evidence concerning the filing of the bond, is of the same character. Had counsel stated when he made the objection as he now argues that the alligation of the bill in regard to filing the bond was insufficient, the Court might have allowed an amendment if it was deemed necessary.

We have already seen that the evidence given of the filing of the bond was insufficient, the decree must therefore be reversed with costs to the plaintiff, and the cause be remanded for the allowance of such amendment of pleadings as may be deemed proper and consistent with the laws of chancery practice in force when the suit was commenced and a new trial.

Order entered accordingly.

All the justices concurring.