Smith v. . Harkins , 38 N.C. 613 ( 1845 )

The bill was filed in May, 1844, and a supplemental bill on 15 June, 1844. They state, that upwards of forty years before, (614) a public ferry was established across the French Broad River in Buncombe County, on the State road, leading from Asheville to Waynesville, in Haywood County, to Macon and Cherokee counties, and to Georgia; and that it is situated about 1 1-4 miles from Asheville, and was originally granted and owned, and kept by Edmund Sams, who then owned the lands on which the ferry was established, and afterwards sold the land and ferry to one John Jarrett, who, in the year 1830, sold the same to the plaintiff: that Sams, Jarrett, and the plaintiff have, in succession, during the periods of their respective ownerships, continually kept the ferry up and well provided with boats and hands and transported all passengers, as in duty bound; that in 1801, the County Court of Buncombe rated the said ferry as the ferry of the said Sams, who was then in possession of it; and a copy of the order is exhibited with the bill. The bills then state, that in 1833, the plaintiff, then owning and occupying the land and ferry, and believing the public convenience and his own interest would be promoted by having a bridge instead of the ferry, erected a good and substantial bridge, and hath continually kept the same in good repair for all such passing, as is required by the public, at rates fixed by the county court in April, 1834, a copy of which order is exhibited also, which allows the tolls to the plaintiff, as the owner of the bridge.

The bills state, that besides the sum paid originally as the purchase-money for the land and ferry, the plaintiff has laid out in the building and repairing the bridge, the sum of $2,000; and that the road on which it is situated is much traveled, and the bridge greatly resorted to for passage by wagons, carts, carriages, and passengers on foot and horseback, and yields the plaintiff much profit. The bills further state, that the defendant Dever, and, as the plaintiff believes, other persons, whose names are not known to him, have subscribed funds and entered into an agreement among themselves to erect a new and free bridge over the French Broad River, about two miles above the plaintiff's bridge, and have employed the other two defendants, Harkins and Culbertson, to build (615) the same, and they had collected timber for that purpose at the spot, and had commenced the bridge. The bills further state that there is no public road established on either side of the river to the place, where the projected bridge is to stand; but that the persons, through whose land a road would pass on the west side of the river, had applied to the county court and obtained at the preceding term an order appointing a jury to lay one off, but that it had not yet been done; and that no order had been obtained by the defendants or any other person from the county court for the building of the new bridge, and that the defendants were proceeding in the work without any lawful authority. The bills then charge that the plaintiff's bridge is a good and sufficient one, and duly attended to, for the accommodation of the public; and that the distances between any given points on the different sides of the river, to and from which persons desire to pass, will not be materially different either way, except to a few persons, resident on the opposite side of the river above the bridges, who may wish to pass to or from Asheville; and, therefore, that the new bridge is not needed and will not be useful to the public, except in the single particular of enabling persons to cross the river without paying to the plaintiff the reasonable tolls allowed him by the county court. The bill further states, as evidence that the new bridge would not be useful, that prior to the establishment of Sams' ferry, there was a ferry at or near the point, where it is intended to build the new bridge; but that Sams' ferry proved so much more convenient than the other, and the roads to it were so much nearer and better, that very soon the other ferry was discontinued and the roads to it abandoned, and that they have remained out of use about forty years. And the bills further change that the sole object of the defendants in erecting the said bridge, is to make it free, with the intent to divert the travel from the plaintiff's bridge, and thereby diminish his tolls and profits, and impair the value of his franchise and property.

The exhibits referred to in the bill are orders of the county court, as follows: (616)

"At a court, etc., on third Monday of January, 1801. Ordered, that Edmund Sams' ferry be rated as follows: Wagon and team, $0.50, etc."

"At a court, etc., on, etc., April, 1834. Ordered, that the following rates of toll be allowed James M. Smith for crossing his bridge, to wit, etc."

The prayer is, that the defendants may be restrained by injunction from building the bridge and allowing persons to cross thereon. And, upon the usual affidavit of the truth of the allegations of the bill, the injunction was granted.

The answers admit that Sams, Jarrett, and the plaintiff, were successively in possession of the ferry across the French Broad River, up to 1833, and that then the plaintiff built his bridge at the same place; but state that the defendants do not know that the ferry was established forty years before, according to law, nor that Sams sold it to Jarrett, nor Jarrett to the plaintiff; and that as to those matters, the defendants are unable to state any belief. The defendants admit, that in 1833, the plaintiff built his bridge, and that it was required by the public convenience and had been long before; but they deny that the plaintiff's motive for building it was to promote the public convenience, but, rather, his private profit by the tolls and the use of it in passing to and from his mills and other estates on both sides of the river. The defendants admit that the bridge of the plaintiff was well built, and is kept in good condition; but say they believe the first cost and repairs ought not to have exceeded $1,600, and that the same has been long ago reimbursed to the plaintiff; for that, besides the use of it by the plaintiff and his people, he has in eleven years received in money, by way of tolls, the sum of $4,800, which exceeds the sum of $400, in annual income.

The defendants further say, that the upper ferry formerly kept at the place, at which they propose to build a bridge, was the first that was established on the river, and was granted to Joshua Jones; and to the answer is annexed a copy of an order of the County Court of Buncombe, made at April term, 1799, as follows: "Ordered, (617) that Joshua Jones' ferry be established and rated as follows, to wit, a loaded wagon, etc.," and they deny that it was ever annulled or discontinued according to law; but admit, "that for many years no regular ferry boat had been kept there." They further state that the roads to the public were occasionally used by persons living in the neighborhood at such times as the river was fordable; and "that eight years ago the county court granted the said ferry to one Robert Murray, who had purchased from Jones the land on which the ferry had formerly been; but that such order was, by omission of the Clerk, not entered of record. The defendants further state, that since the bill was filed, the county court had passed orders for a road, on each side of the river to the place where the said bridge is to be erected, and a jury has laid each of them off to the river and made a report, which was approved by the Court, and that there were overseers appointed to open them and keep them up as public highways.

The defendants further state that a bridge at the place of Jones' old ferry would be highly useful to the public; and the answers set out in detail the several public places, to which the road by that place would be nearer and better than that by the plaintiff's bridge. They say, that, in consequence thereof, a subscription had been made to build the projected bridge and the defendants engaged to superintend or do the work; and that it was and is intended, if allowed to be built, a free bridge. They admit that it will divert a part of the travel from the plaintiff's bridge; but they say that it will not diminish his receipts more than $220 yearly; so that he will still have an income from tolls of $150, and his own passage, which is valued at $150 more, making $300 annual gain or saving; and, therefore, the defendants insist that the erection of the bridge would not be such an injury as the court ought to restrain, inasmuch as the plaintiff would still be well compensated for all outlays and the performance (618) of all duties to the public. The answers further state, that, at the solicitation of the community, Robert Murry agreed to permit a bridge to be built over the river in lieu of the ferry, to which he was there entitled; and that under such permission the contract was made with the defendants, Harkins and Culberston. And the answers frankly submit that the defendants have a right to build the bridge over the river, as a part of the highway or road authorized by the county court; and that although they have no authority to receive pay for passing the bridge, they have the right to build at their own charges a free bridge for the accommodation of the public by the consent of the owner of the land on each side of and in the river; or, at all events, at the point designated in lieu of the ferry established there, upon the permission of Murray, the owner of the ferry.

The plaintiff read a deed from Edmund Sams to John Jarrett, dated 7 January, 1817, for a tract of land, situate on the French Broad, and containing 350 acres on both sides of French Broad, described by metes and bounds, some of which appear to be the same with parts of the boundaries described in the first deed. In deciding on this appeal it is to be borne in mind, that the question did not arise on the hearing of the cause, whether there should be a perpetual injunction; but the question is, merely, whether the injunction shall be continued to the hearing.

It is a doctrine of the common law, that if a ferry be erected so near an ancient ferry on the same stream as to draw away its custom, it is a nuisance to the owner of the old one. 3 Black., 219. And it was held by this Court in the case of Long v. Beard, 7 N.C. 57, that in such a case an action lies for the owner of the first ferry, against the owner of the new one, although the latter be a free ferry; for the (619) injury to the plaintiff was not in the gains of the defendant, but in drawing away the travel, and thereby diminishing his tolls and the value of his franchise. The reason for this, as given by Mr. Blackstone, is, that the owner of a ferry is bound to the public to keep it in repair and readiness for the ease of the citizens; and that he can not do, if his franchise may be invaded, or if the income of the ferry may be curtailed by diverting passengers by means of a rival unauthorized establishment of a like kind. Therefore, although the public convenience is the occasion of granting franchises of this nature, and, for example, the ferry established, or the road chartered, is publici juris, yet the property is private; and, consequently, an injury to it may be the subject of an action. For no person could be expected to serve the public by bestowing his time, labor, and money in establishing a ferry or erecting a bridge, if its value could be immediately destroyed by the caprice or malice of private persons in adopting means of drawing away the custom to some establishment of their own. It is, then, truly the interest of the public, as well as an instance of the private justice due to an individual, that the public grant of franchises of this kind should be protected by being held to be exclusive in the grantee, unless legally and duly ordered otherwise by the public authorities. Hence, not only did the common law give redress for an invasion of the franchise of a ferry by an action: but upon its being found that such redress was not adequate, equity interposed the more effectual remedy and restraint of injunction. It is obvious, that, from the difficulty of proving the extent of the injury from time to time, and from the constant litigation arising out of the repeated invasions of the right, that must be naturally expected from a rival erection, the relief in equity is highly salutary, and, indeed, is the only remedy that has any pretensions to be deemed adequate. The cases are numerous of redress in that method. In a case in the Exchequer, LordHale presiding, the owner of land on both sides of the Thames set up a ferry three-quarters of a mile from an ancient ferry, and there (620) was a decree to suppress it on the bill of the owner of the old ferry. 2 Austruth, 608. The doctrine has, indeed, been extended to all exclusive grants or franchises, of which one is in the actual possession, and there is no fair doubt of his title. Bush v. Western, Pre. Ch. 530; Whitchurch v. Hide, 2 Atk., 391; Croton Turnpike v. Ryder, 1 John C. C., 611; Newburg Turnpike v. Miller, 5 John C. C., 101. The same principle was acted on in this State in Long v. Beard. 6 N.C. 337; S. c.,4 N.C. 684. It is true, that there the defendant received pay and therein expressly violated the statute; but the relief would have been granted without that circumstance, upon the general principles stated in the latter part of the opinion. And, in Newburg Turnpike v. Miller, supra, the remedy by injunction was used to suppress a free bridge, in a case like the present. We consider, then, the law of the case quite well settled. The only questions, further, are, whether the plaintiff is entitled to the franchise, of which he is in possession; and whether the defendant has shown any right to disturb the plaintiff or divert his custom.

It is true, the plaintiff doth not show an express grant to himself, or even to any one, under whom he claims, to keep a ferry over the French Broad. But by the Acts of 1779 and 1784, the power to appoint and settle ferries and to rate them is conferred on the county courts; and, therefore, the rating of Sams' ferry in 1801, can be no less, by implication, than the settling it then, or, at the least an admission that it had been before done by some order not now found; for as the appointing and the rating are legally to be the acts of the same body, the rating a ferry, as then existing, imports that it thus existed by leave of that Court, and, therefore, legally existed. Then the bill states, that, from that day to this, Sams, Jarrett, or the plaintiff has, in succession, been in the uninterrupted possession under that grant and subsequent conveyances. The answers admit the possessions as charged, and they do not deny the grant nor the mesne conveyances, but say only that the defendants have no knowledge nor belief on those points. But an injunction can not be dissolved on an answer of that kind; which barely hesitates to admit the (621) plaintiff's title, and will not venture to deny it. We have said, indeed, that we consider the grant of the ferry, originally, sufficiently established by inference from the recognition of it by the county court. But if there were any doubt of that, the subsequent exclusive and notorious enjoyment for forty-four years places the title above all question, if the different possessors have been in on the same title. As to Sams and Jarrett, it explicitly appears to have been so; for the deed of the former to the latter expressly conveys the ferry. As far as we can collect from the description in the deed of Jarrett to the plaintiff, the and conveyed includes that on which the ferry was established, which, if that be true, passed with the land. The plaintiff swears that such is the fact. It is probably so, judging from the admissions in the answers, that from the date of that deed Jarrett left, and the plaintiff has been in possession. It may be necessary, perhaps, on the hearing, that the plaintiff should establish this point more distinctly, as he may do by a survey and other means. But as he has had no opportunity yet to take proofs, and the motion to dissolve the injunction is heard on the pleadings and exhibits alone, and the answers do not deny the title, we must assume for the present, after so long a possession, under apparent color, that the plaintiff's title is good, especially as the county court has also in 1834 rated the bridge built by the plaintiff in lieu of the ferry, therein calling the plaintiff the owner. It is next to be observed, in order that it may be understood that the right to the ferry gives the plaintiff the right to the bridge and to demand tolls at it, that the Act of 1806, Rev. St., Ch. 104, sec. 28, expressly authorizes the proprietor of a ferry, who shall prefer building a good bridge, instead of keeping the ferry, to do so, under the same right and in the same manner by which the ferry is held, with a proviso, that the tolls may be regulated by the county court, so that a greater advance on the tolls above the ferriages than 25 per cent be not allowed.

It is further to be considered, whether the defendants have shown any right in themselves, to encroach on that of the plaintiff by drawing away travel to another ferry (622) or bridge. They allege such right upon several grounds: First. They say that they have the privilege of making themselves useful to their fellow-citizens by the donation of a bridge, that may be passed without toll; and that even then the plaintiffs' tolls will not be diminished more than about one-half, and that the income will still be a fair remuneration for his outlay on the bridge. This pretension has been already considered in discussing the grounds, on which both law and equity give a remedy to the proprietor of a franchise like the plaintiff's. The case of Newburg Turnpike v. Miller, supra, was that of a free bridge, and it was put down. So, in Long v. Beard, 7 N.C. 57, the ferry was laid in one count to be free, and the judgment was affirmed; and to the argument, that such a ferry was for the public good, it was replied that the public could think nothing for its good, which was an injury to an individual by ruining his property. Private persons may dedicate their land or other property to the public use; but not so as to impair and injure exclusive rights previously granted by the public to a citizen. To authorize such an inference they must show, not only their own willingness to promote the convenience of the community, but the acceptance thereof by the regular organs of the public, the constituted authorities. Without such sanction, the action of individuals is not only officious, but must be deemed to be opposed to the will of those authorities, the true public, in a legal sense. For the making and regulating roads, ferries and bridges, are the proper subjects of political action, and are necessarily governed by the will of the law-making power, or of those to whom it may be delegated. In such a case as this, authority to erect a new bridge might well be refused, upon the grounds of the gross injustice to the plaintiff, who had already laid out his capital for the accommodation of the public, upon the good faith of the public. Besides, although the defendants might be willing to build a bridge at present, what security is there, that they would keep it up? The immediate effect of their bridge is to render (623) the plaintiff's too unprofitable to be worth his care, and it goes down. When the new bridge decays, the plaintiff or any other person can not be expected to trust the public faith so far as to build another toll bridge, which may again be rendered of no value by a rival free bridge, and the defendants will be under no obligation to rebuild their bridge; and thus the charge will be thrown directly on the public or county treasury, or the public will be without a bridge altogether. The trust policy, therefore, as well as good faith to the plaintiff, might forbid the county court from granting the defendants an order for their bridge; and we must take it, that the defendants so understood, else they would have applied for an order. For it can not be doubted, that in our law the whole subject of ferries and bridges is under the control of the several county courts. From the nature of the subject, the necessity for a new ferry or bridge is, like that for a road, to be judged of by the public authorities, and that decision must be final. Charles River Bridge v. WarrenBridge, 11 Peters, 420. But in this State, the jurisdiction is expressly conferred on the county courts, by the Acts of 1779 and 1784, and others, to appoint and settle ferries and lay out roads "where necessary," and to build bridges at the expense of the county, and to contract for the building of toll bridges, and to regulate the rates of ferriage and tolls. Therefore, whoever sets up a ferry or builds a toll bridge knows, that he does so subject to the future action of the county court or Legislature, in authorizing other ferries or bridges at other points on the same stream, though so near his own as to interfere with his tolls. But one may very willingly trust to the benign respect of the regular tribunals of the country for the claims on their consideration, from the hazards of his adventure, and the benefits derived from it to the public, who would not lay out a penny on the work, if every individual or voluntary association of individuals might, of their own head, oppose to his a rival establishment, which would draw away all his profits, or a considerable part of them: and the more considerable the part the greater the injury, although a fair profits, might be left on his outlay, as that is a consideration for the Court in fixing the rate of tolls, and not for private persons. (624)

But it is further insisted for the defendants, that they have the authority of the Court for building a bridge. First, they rely on the right of an old ferry belonging to Jones at this point, and since, as they say, vested in Murray, who permits them to build the bridge, instead of building it himself, as he might do under the Act of 1806, as the proprietor of the ferry. Upon this part of the case, it sufficiently appears that in April, 1799, Jones was entitled to a ferry: his title was then declared by the county court; and the bill admits that he kept up the ferry until that of Sams was established, and for a short time afterwards. But the bill states that, then 1801, Jones found his ferry so unprofitable, as to let it go down, and that it was not used by the public for the last forty years and more. The answers almost admit the truth of that allegation. They deny, indeed, that it was "annulled or discontinued according to law," by which they mean, we suppose, that it was not suppressed by order of the Court, and they would infer therefrom, that the title continued. But it is distinctly admitted, "that for many years no regular ferry boat had been kept there," and not a fact is stated to show that the "many years" do not embrace the whole period of non-user stated in the bill. The answers are too vague and equivocal to allow the Court to found on them any contrary conclusion. Therefore, the franchise of Jones must be clearly understood to have been abandoned by him; forty years omission to furnish the public with the service due from him, as owner of a ferry, must amount to a surrender of his right to the exclusive franchise. This is the clearer from the admitted fact, that Murray himself, who is said to be the present owner of the land, applied to the Court eight years ago for a new order to him to establish a ferry; which shows that the former right was considered by every one as no longer existing. We hold, therefore, even if the defendants had connected themselves with Jones, that they could not justify their proceedings under his title; for, without clear evidence that Jones kept up his ferry within the long period of forty years, we should hold that he could not build (625) a bridge at the place, much less authorize the defendants to do so.

It can hardly be necessary to say that the claim set up under an alleged order of the county court in favor of Murray himself can not be sustained; for we can receive no evidence of the order, but the minute of it in the record, and it is admitted there is none such. If one had been made and omitted by the Clerk, there would be a ready way to supply the omission. But there has been no action upon that order, even if it appeared to have been made; and the Act of 1806, which allows a bridge to be built instead of keeping the ferry, can only apply to a ferry, actually existing and in use at the time of substituting the bridge for the ferry.

Neither can the defendants derive an authority to build the bridge from the establishment of a public road to the river, on each side of it, supposing, even, that the river itself would thereby be made a part of the highway. In the first place these defendants do not appear to be the overseers of those roads, nor to be acting by the consent of the overseers. But the overseers themselves would not, under a mere order laying out a road and appointing overseers, be authorized to build a bridge over such a stream as this. The act, secs. 14 and 15, directs an overseer to build causeways and necessary bridges "through swamps and over small runs, creeks, and streams," and authorizes him to cut poles and other timber to enable him to comply with the duty of making and repairing the bridges and causeways. It is apparent, that only such bridges are meant as can be conveniently built by the overseer and his hands in the time ordinarily employed in working on the road. And when the overseer and hands can not conveniently make it, the Court is to contract for the building at the charge of the county, s. 22, or contract for the building of a toll bridge by a grant of tolls to the builder, at the rate or for the terms agreed on, s. 26. A fair construction of the act therefore requires, that, in cases where the overseer and hands can not, as a duty, be required to build a bridge, the order of the Court is proper and necessary to justify the building of the bridge or the establishment of (626) a ferry; and the appointment of overseer is no more an authority to build a bridge in such a case than it would be to set up a ferry. Before a bridge can be built over a large stream, interfering, as it may, with the rights of the owners of ferries or other bridges, the public mind must be consulted; and, in this respect, the public mind is, by the statute, kept by the county court. It may, moreover, be mentioned, that in the case of the Newburg Turnpike v. Miller, 5 John C. C., 101, a public highway had been laid out which embraced the free bridge; yet that did not help the defendants, and the bridge was closed.

Upon the whole, therefore, we hold very clearly that the projected acts of the defendants are unauthorized and, if perpetrated, would be highly mischievous to the public and injurious to the plaintiff; and that the injunction was properly continued to the hearing. And we direct this to be certified to the court of equity.

PER CURIAM. ORDERED TO BE CERTIFIED ACCORDINGLY.

Cited: Carrow v. Bridge Co., 61 N.C. 119-20; Toll Bridge Co. v.Flowers, 110 N.C. 385; In re Spease Ferry, 138 N.C. 222.

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