Snidow v. Board of Supervisors , 123 Va. 578 ( 1918 )

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The assignments of error raise the questions which will be considered and disposed of in their order as stated below.

1. It is settled by the authorities that the ferry of the appellants is a private property right—an incorporeal hereditament—acquired from the Commonwealth, granted by legislative authority exercised by the circuit court per its order of June 21, 1892, above referred to, which granted to appellants the franchise for such ferry. Patrick v. Ruffin, 2 Rob. (41 Va.) 209, 40 Am. Dec. 740; Conway v. Taylor, 1 Black, 603, 17 L. Ed. U. S. Supreme Ct. Rep. 191, 11 R. C. L., p. 926. And to the extent of the right granted by such franchise, such property right is undoubtedly protected by sec- 58 of Art. 4 of the Constitution of Virginia of 1902, which provides that the legislature “ * * shall not enact any law whereby private property shall be taken or damaged for public use without just compensation.” Mason v. Harper’s Ferry Bridge Co., 17 W. Va. 396; 4 R. C. L., p. 199; Lewis on Em. Dom. (2nd ed.) sec. 228, and note thereto.

But the question remains: What is the extent of the property right granted ? When is it infringed upon ? How exclusive is it?

There is a distinction drawn by many of the authorities in England and in the United States between a franchise for a ferry and a franchisé for a bridge; some holding that the operation of the one does not infringe upon a franchise for the other. In view of the conclusions hereinafter stated, it will be unnecessary for us to enter upon any consideration of that distinction. For the purposes of this case we may assume that the operation of a rival bridge will as much infringe upon a nearby ferry previously established, as would be a rival ferry in the same locality.

2. Throughout the further consideration of the subject in hand there is, however, an important distinction which miist be borne in mind, which underlies the authorities on the subject in a controlling way, but which is seldom referred to therein in express terms. That distinction is that a franchise may be granted as exclusive as against some persons and not as against others. That is to say, a franchise may be, and most often is, granted as exclusive as against all persons other than the sovereign granting it, but not as exclusive in the sense that the sovereign may iiot itself subsequently exercise or grant to another the right to exercise the same or a similar franchise so near the same locality occupied by that first granted as to interfere with and perhaps wholly to destroy the income enjoyed by the latter from such prior franchise and the investment of capital therein. Conseuently, there is a most important and fundamental difference between the rights of holders of franchises in controversies with rival operations, where the latter are not authorized by legislative authority, from the cases where the rival operations are so authorized.'

3. In England, even though the ferry franchise is exclusive as against all others not acting under legislative authority, and is derived, not under legislative grant by act of Parliament, but by grant from the Grown, it is settled by the modern decisions (overruling earlier holdings to the contrary), that in a controversy between the owner of the ferry and a person or corporation erecting and operating, a bridge across the same stream so near to the ferry as to draw away its custom, where such'bridge is not erected under legislative authority purporting to authorize it without liability for damages, and where the latter does not physically obstruct the approach to or operation of the ferry, the erection and operation of the bridge is not an infringement of the ferry franchise and does not render the owner or operator of the bridge liable in damages to the owner of the ferry, although the practical effect of the operation of the bridge may be to draw away all custom from the ferry, so as to wholly destroy the value of the ferry franchise. Dibden v. Skirrow, 12 Am. & Eng. Anno. Cas. 252; overruling Regina v. Cambrian, L, R. 6 Q. B. 422, which is cited in many of the early American cases.

In the United States, however, the weight of authority establishes the doctrine that in a controversy between the owner of a ferry, which is exclusive as against all others not acting under legislative authority and is derived by legislative grant, and a person or corporation, not acting under legislative grant purporting to authorize such action without liability for damages, where a bridge across the same stream is erected and operated by the latter so near to the ferry as to draw away its custom, this will be held to be an infringement of the ferry franchise, although the. approaches and operation of the ferry may not be physically obstructed thereby; and such owner or operator of the bridge will be liable in damages to the,owner of the ferry for drawing away the custom of the latter. See note to 12 Am. & Eng. Anno. Gas. 252, and American cases cited. In such case the rival bridge is treated in all respects as i? it were a rival ferry, which could not at common law have been so located without liability in damages for drawing away the travel and thereby diminishing the value of the franchise. Smith v. Harkins, 38 N. C. 613, 44 Am. Dec. 83; Norris v. Farmers, etc., Co., 6 Cal. 590, 65 Am. Dec. 535, and authorities therein cited.

This difference between the doctrine on this subject prevailing in England and in the United States may be reconciled in principle by the consideration of the difference between the power of the Crown to grant franchises in derogation of common right and the power of the legislatures of the States in that regard. The power of the former, under consideration, was limited by the common law of England to its exercise for the public benefit. Beyond that no grant from the Crown was valid. Whereas, the power of our State legislatures, where unrestricted by the State Constitutions (and they are generally, if not universally, unrestricted in that behalf), is unlimited, arid is as plenary as the power of Parliament in England over the subject. The controlling distinction between the English and American cases referred to, therefore, is this; that, in the former, the private property right in the ferry held under grant from the Crown is limited as aforesaid; whereas such private property right in the ferry held under legislative grant from our States is unlimited, as against a rival ferry or bridge located so near by as to draw away custom of travel from the ferry first established, where the second ferry or bridge is not itself operated under legislative authority as aforesaid. The same rule applies to rival bridges and to a rival ferry to a bridge first established. See authorities above cited.

It should be noted, however, that the American doctrine, referred to, is applicable, (1), only where (as is universally true, of course, in the United States) the franchise for the ferry or bridge first established is derived under legislative authority, and (2), where the later rival ferry or bridge, is not operated under legislative authority, such as aforesaid. In such case the franchise for the ferry or bridge first established is held, under the American doctrine, to be an exclusive franchise as against all others not acting under the legislative authority aforesaid. Mason v. Harper’s Ferry Bridge Co., supra, 17 W. Va. 396; Norris v. Farmers, etc., Co., supra, 6 Cal. 590, 65 Am. Dec. 535; Gates v. McDaniel, 2 Stev. (Ala.), 211, 19 Am. Dec. 49; Note of American authorities in 12 Am. & Eng. Anno. Cas. following the case at p. 252. And the location and operation of a later rival ferry or bridge so near to the first established as to draw away the travel from the latter, by one not acting under legislative authority purporting to authorize such action under the rule of damnum absque injuria,, will be .held not only to damage the private property right in the first established ferry or bridge, but to be a taking of such private property right, in such prior ferry or bridge, within the constitutional inhibition against the taking of private property for public use without just compensation. Mason v. Harper’s Ferry Bridge Co., supra, 17 W. Va. 396: Lewis on Em. Dom. (2nd ed.) sec. 137 and authorities cited and sec. 228 and note thereto. And the same is true where the later rival ferry or bridge is itself located and operated under legislative authority which does purport to authorize such action under the rule of damnum absque injuria, if the prior ferry or bridge was established under a franchise granted by legislative authority as exclusive against the sovereign State, by the express terms of the grant (as held by some of the authorities) or by necessary implication from the express terms of the grant (as held by other authorities). 1 Minor on Real Prop., sec. 69; Piscataqua Bridge Co. v. N. H. Bridge Co., 7 N. H. 35; Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall, 51, 18 L. Ed. 137; Power v. The Village of Athens, 99 N. Y. 592, 2 N. E. 609. And such an express grant of an exclusive franchise as against the sovereign State is a contract between the grantee and the State and any subsequent act of the legislature of the State impairing its obligation is void under the federal Constitution. Lewis on Em. Dom., supra (sec. 187) and authorities cited.

While the above is true, it is nevertheless well settled that whether the grant of a franchise (such as that under consideration, to-wit, of a ferry) is exclusive in the sense last above used, is to be determined by the construction of the grant itself. And the rule universally applied by the authorities to such construction is that the grant will be strictly construed against the grantee and in favor of the sovereign; and that such a grant will hot be deemed exclusive unless expressly so stated in the grant itself, or such conclusion arises by necessary implication from the express language of the grant. Lewis on Em. Dom., supra, secs. 136, 138 and authorities cited; also Tuckahoe Company v. T. & J. R. Co., 11 Leigh (88 Va.) 42, 36 Am. Dec. 374; Charles River Bridge v. Warren Bridge, 11 Pet. 420, 9 L. Ed. 773. And a grant of such a franchise by an act of the legislature, or by a court acting under legislative authority, merely giving the authority to establish and operate a ferry, does not confer an exclusive right, so as to deprive the legislature of power to subsequently authorize another ferry or bridge near the same place, it not being in the same location, without infringing upon the prior grant. Lewis on Em. Dom., supra, (sec. 136); Somerville v. Wimbish, 7 Graft. (48 Va.) 205; Bush v. Peru Bridge Co., 3 Ind. 21; 1 Minor on Real Prop., sec. 69. And the fact that, at the •time of the grant of a ferry franchise, there was the general statute (sec. 1386 of Code of Va. above quoted) in existence (which is relied on by appellants), does not change the rule of construction under consideration, as was expressly held in the following cases: Williams v. Wingo, 177 U. S. 601, 20 Sup. Ct. 793, 44 L. Ed. 905; Mason v. Harper’s Ferry Bridge Co., supra, 17 W. Va. 396; Somerville v. Wimbish, supra, 7 Gratt. 48 Va., 205.

It is true that in the case of Mason v. Harper’s Ferry Bridge Co., just cited, it is held that the rival bridge company was compelled to pay damages for diverting tolls from the previously established ferry near by, but this holding was made on the ground that although the bridge company acted also under legislative authority under its charter franchise, such charter, pursuant to the statutes of West Virginia on the subject, was conditioned upon its paying darn-ages of that character. That is to say, there was nothing in the statute law under which the bridge company derived its right to erect and operate the rival bridge which indicated that the legislature intended to grant to it the authority so to do without liability for damages. And such West Virginia case expressly holds that if the legislature had granted the bridge company such authority, it had the power to do so, and, in such case, there would have been no infringement of the prior ferry franchise and no liability on the part of 'the bridge company in damages therefor.

It is also true that in the case of the Binghamton Bridge, 3 Wall. 51, 18 L. Ed. 137, sub. nom. Chenango Bridge Co. v. Binghamton Bridge Co., 3 Wall. 51, 18 L. Ed. 137, where the act of the legislature, authorizing the older bridge, contained the proviso “that it should not be lawful for any person or persons to erect a bridge within a distance of two miles” (italics supplied), that provision was held to be a part of the contract between the State and the bridge company, but that decision, as pointed out in the subsequent case of Williams v. Wingo, supra, 177 U. S. 601, 20 Sup. Ct. 793, 44 L. Ed. 905, rests upon the peculiar language of such act of the legislature and, as also pointed out in the last named case, is not in conflict with the holding in such case aforesaid, that the Virginia statute aforesaid (sec. 1386 of the Code) will not be held to be a part of the grant of a ferry franchise made while such statute was in force, so as to confer such franchise as exclusive, as against the power of the legislature to pass a subsequent act authorizing a county to establish a ferry within half a mile of the former ferry.

4. In the instant case the board of supervisors claim that they had legislative authority to take the initial action they did to establish the rival .bridge in question under statute (sec. 944-a above cited, and the material portions of which are above quoted), and that, if not, its said action under such statute in the matter of locating and establishing the bridge was validated by the special act of Assembly (Acts, 1916, p. 548, above quoted). We are of opinion that both of such positions are-well taken.

The special road law for Giles county (Acts, 1908, p. >611, the material portions of which are above quoted), does not expressly repeal said section 944-a so far as applicable to the taking of initial action for the establishment and ’location of new bridges in Giles county; and, in view of the provision of such special road statute above quoted (and especially of section 13 thereof), we are of opinion that it did not do so by necessary implication (such action of the board of supervisors not undertaking or purporting to extend to the condemnation of land for use for the location of the bridge, or for its approaches, jurisdiction over which matters is conferred on boards of supervisors by said section 944-a as the general law of the State). And we are of opinion that the latter jurisdiction was taken away from the board of supervisors of Giles county, by necessary implication, by the special road law aforesaid, and such jurisdiction was thereby conferred on the-road commission of such county aforesaid.

In other words, there are a number of things needful to be done before the public is furnished with the use of a public bridge at a location where one has not before existed, among which are the following: (1) The determination that such a bridge should be established and its location; (2) the determination of the plans and specifications for the bridge and its approaches; (3) the location of the approaches as they recede from the bridges; (4) the acquisition or condemnation of the right of way for the bridge and its approaches; (5) the erection of the bridge and its approaches; and (6) the direction or supervision of the work of the erection of the bridge and its approaches. It appears from a comparison of the special road law for Giles county with the general statute law of the State aforesaid as to roads and bridges, that the initial determination of the matters mentioned under headings (1) and (2) and the matter mentioned under the heading (5),.subject to the limitation that the “direction” or supervision, mentioned under heading' (6), must be under the road commissioner (or commissioners) in whose district the subject of it may be located, are left under the jurisdiction of the board of supervisors; whereas the matters mentioned under the headings (3) and (4) are transferred to the said road commission. By the powers given the latter, however, in the matters last referred to, such commission is, in effect, given a veto power upon the establishment and location of such bridge. When any land owner affected is summoned before the road commission “to show cause against” the road which will be occupied by the bridge, or will be needed for its approaches, “the expediency or propriety of establishing” the bridge and the location of it, is inseparably involved in the expediency and propriety of establishing the road, and the initial decision of those questions wdiich may have been made by the board of supervisors is, in effect, again in issue before the road commission upon their undertaking to act in the further matters touching the condemnation of the right of way for the bridge and for its approaches. Thus, under such special road law, the proceed ings to establish such a bridge cannot be initiated before the road commission, but must be initiated before the board of supervisors. On the other hand, the board of supervisors cannot proceed further than the exercise oí their initial jurisdiction aforesaid. The further steps necessary to carry such action into practical effect must be taken, if at all, before the road commission. It is before the latter that the land owners affected are summoned. Their rights are not affected by any action the board of supervisors may take in the premises favorable to the establishment of or as to the location of the bridge. They have their day in court before the road commission on those subjects, as well as upon the quantum of damages which may be allowed them by the road commission.

5: Therefore, we are of opinion that since the board of supervisors and road commission acted under legislative authority, authorizing, and, as to the former, also validating, their action in locating and establishing the bridge, together with its approaches, in question, such bridge (with its approaches), in so far as they do not physically obstruct the approaches to the ferry of appellants, did not infringe upon the property rights of appellants in said ferry, and hence will not, by its drawing away the custom in public travel from such ferry, even though it result in the total withdrawal of such custom therefrom, take, or damage, the property of appellants within the meaning of section 58 of the Constitution of Virginia.

6. There is no evidence in the cause tending to show that either of the approaches to the landings of said ferry will be in any way obstructed by said , bridge or by its approaches. On the contrary, the bridge itself does not touch either of the approaches to said ferry. And as appears in detail'from the above statement of the case, the approach to the bridge on the eastern side of the river, as being constructed at the time of the trial in the court below in accordance with the only plans, which the evidence in the cause tends to show were decided upon, will not, as shown by the evidence for appellees, in any way physically obstruct the approach to the landing of said ferry on the eastern side of.' the river. There is no evidence for appellants tending to controvert this. . Their evidence on this subject is to the effect that some prior and different plans for the approach to the bridge on the eastern side of the river were considered by the board of supervisors when its purpose was to locate the bridge at a different point on the river, (to-wit, about 272 feet below said ferry on the eastern bide of the river) from that finally' determined upon (tc-w-.t, 1S5 feet below such ferry on the eastern side of the river) : but which plans were never acted upon nor intended to be acted upon after such last named location of the bridge was decided on. Such evidence was, therefore, immaterial and could not serve to controvert the evidence for appellees on the subject.

Moreover, the extent of the contemplated works in constructing the approach to the bridge on the eastern .side of the river was fixed by the action of the road commission under the special road law of Giles county aforesaid by tire condition which they annexed to their establishment of the road (which condition was afterwards assented to by the board of supervisors). The extent of such contemplated works, as thus limited, fixed also the extent of the right of appellants to damages for their land so taken and for damages to the remainder of their tract of land thus partly taken, including the damages, if any, to their adjacent ferry landing on such remainder of land, which would be occasioned. by any physical obstruction of the public road approach to such forry landing. As shown by the report of the road commission made under such special road law, quoted in the above statement of the case, they refer to the location of the land taken, which extended from the existing public road, as a new right of way, to the location of the bridge as finally decided upon, as aforesaid; and which new right of way was being condemned for the construction of the approach to the bridge at its eastern end (as well as for the abutment, pier and overhang of the eastern half of the bridge), as “a public road 80 feet in width,” and state that—“It is expressly understood that the establishment of this (new) road shall-not be construed to discontinue the present road to the Snidow (appellants) ferry landing, but said (present) road shall be left open so as not to interfere with the public travel to and from said ferry.” The board of supervisors, when they subsequently contracted for the construction of such approach to the bridge, did so by plans and specifications which conformed to such condition annexed to their establishment of the road by the road cbm~ mission.

Therefore, no question of damages to appellants by reason of any physical obstruction of the public road approach to their ferry landing on the eastern side of the river (nor indeed to the approach to their landing on the western side of the river as we shall presently see), was ever put in issue in the instant case.

Should the actual construction of the approach to the bridge physically obstruct the public road approach to either the eastern or western ferry landing of appellants and no other reasonably equally convenient public road approach or approaches thereto be provided, so as to prevent such obstruction, the proceedings in the instant cause will furnish no bar against the appellants in the future asserting in such a proceeding as may be authorized by law, their right to operate their ferry free from physical obstruction to its approaches, or to the recovery of proper damages for any injury which may be occasioned by such obstruction.

There is no evidence in the case tending to show that the end of the bridge on the western side of the river, or its pier, or abutment, or approach thereto, as it was finally located; about 100 feet below the landing of said ferry on that side of the river, (instead of about 154 feet below such landing as at first contemplated) would physically obstruct the approach of such ferry landing.

7. We are, therefore, of opinion that there was no error in the action of the trial court in giving the instruction complained of (quoted in the above statement of the case; which excluded from the jury any consideration of any question of damages to the ferry, or to the ferry franchise, or to the ferry rights of way; nor in the admission or exclusion of evidence on that subject.

Two other assignments of error by appellants remain for our consideration, which are not covered by what has been said above.

8. As set forth in detail in the statement of the case above, it is urged in section (b) of the grounds of appellants3 demurrer to and motion to quash the original proceedings in the case that in establishing said road and in allowance of damages, the road commission had no authority to act alone as they did, and not in conjunction with the district board of road commissioners for another (Pearisburg) district of Giles county, in which the western end of the bridge, and its approach at that end, were located on the western side of New river. As to this, it is deemed sufficient to say that the application for the new road in the case before us, and which alone affected the appellants, was not “in more than one district,33 but wholly in the district of the road commission (appellees in this case), and hence the latter were authorized by the special road law of Giles county aforesaid to act as they did. The provision of such act relied on by appellants, which provides, in substance, that if the application aforesaid be for a new road or changing of an existing road which is “in more than one district,” that the road commission “of any other district affected” shall also be convened by the summons to be issued by the clerk to be present at the time and place'of the initial meeting of the road commission to whom such application is made, has no application, therefore, to the instant case. And even if such provision had application to the instant case, it did not affect the jurisdiction given by said special act to the road commission of Pembroke district, to whom said application was made, over appellants and the condemnation of their land located wholly in the district oC such road commission, and gave only to the road commission of the Pearisburg district west of the river a right to be present at such meeting, for the denial of-which right the latter only could complain.

9. What we have said above sufficiently disposes of the other grounds of appellants’ demurrer to and motion to quash the proceedings in the case, except the following sole remaining position of appellants to be now considered.

It is urged that the appellants have been deprived of due process of law because they were summoned to appear before the road commission to show cause only against the road proposed to be located in accordance with the petition of John F. Williams and others (quoted in the above statement of the case) which road, as therein expressly designated, was proposed to be located about 275 to 300 feeu below the ferry landing aforesaid on the eastern side of the river and was to be located so as to extend from the existing public road to the then proposed location of the eastern end of the proposed bridge and would not pass over or take any land of the appellants; and that hence appellants were given no notice by such summons to show cause against the road as subsequently located by the road commission, at an adjourned meeting thereof, at a location different from that first proposed as aforesaid and which placed it only 195 feet below said ferry landing and across a portion of the land of appellants.

This position ignores the provisions in said special road law for Giles county, which are quoted in the above statement of the case, which practically constituted the road commission a court, with power of adjournment from time to time and from place to place, and conferred upon it the jurisdiction to disregard the route of the road proposed in the application therefor and to choose and establish a wholly different location therefor. Appellants having been duly summoned before the road commission at the time and place of their initial meeting' were thereby duly made parties to all the subsequent proceedings of the road commission; were thus given their day in court; and were bound by such proceedings, under the provisions of such special road law, except as they might be relieved therefrom upon appeal taken in accordance therewith. Thus were the appellants afforded due process of law, including a trial by jury as provided for in such statute. And although it may have been true in the instant case that the appellants did not have actual but only constructive notice of the change in the location of the road aforesaid made by the road commission at their adjourned meeting at the time of such action; and not only was that sufficient, but the appellants, soon after-wards also had actual notice of such action of the road commission, and appealed therefrom to the circuit court; and appellants had a trial de novo on such appeal, which gave them due process of law in the court below upon the trial there of all the issues in the case. So that in no aspect of the case do we feel that there is any merit in the position of appellants which we have now under consideration.

Upon the whole, therefore, we find no error in the judgment complained of and it will be affirmed.

Affirmed.