Young v. Harrison

By the Court.

Lumpkin, J.

delivering the opinion.

The complainants in the bill charge that they, for a long time, have been, and now are, the proprietors of a ferry across- the Chattahoochee river ; that the defendants, under and by virtue of an Act of incorporation, granted by the Legislature of this State, in 1837, are about completing a toll bridge across the said river, near their ferry, which, if finished and put in operation, will very materially injure, if not entirely destroy, the value of their ferry. They further state, that they are the owners, of the land on the east or Georgia side of the river, upon which the defendants have placed one of the abutments of their bridge. They further contend, that the Act of the Legislature is an unauthorized violation of their private rights; that the same has been repealed by that body, and they pray an injunction against the defendants, prohibiting them from finishing said bridge, and from the use and enjoyment thereof, and also restraining them from trespassing on their land.

The injunction was granted by the Chancellor. To this bill the defendants filed their answer, wherein they rely upon their grant from the State to erect this bridge, upon the building and repairs of which they have already expended about $30,000. They further show, that they have used due diligence in endeavoring, in good faith, to comply with the conditions of their charter, which they allege they have hitherto been prevented from doing, by the obstinate refusal of the complainants to accept compensation for the use of their property, and the failure of the Inferior Court of Randolph County, where the land is situated, to appoint commissioners to assess the damages due for the land of complainants, used in the construction of the bridge, as provided for by the Act. They state also, that a mandamus is now pending; to compel the Court to appoint appraisers ; wherefore, they ask that the injunction may be dissolved, and they permitted to complete the repairs necessary to the opening of the bridge for the public use.

Upon a motion made for that purpose, the Court below refused to dissolve the injunction ; and to this decree this writ of error is prosecuted.

I need hardly remark, that this cause involves principles of immense magnitude in its results, both as it regards the interests of individuals and the rights of the public. I have not pretended to recapitulate all the facts presented by the record, nor shall I attempt to discuss, in detail, the numerous questions involved in this litigation. Mine shall be the task of performing, as best I may, the less ambitious, though perhaps not less acceptable service of discussing a few of the more'prominent features of this case. Our judgment upon these, must have a controlling influence upon the rights of the parties, as well as the means of redress allowed them by law.

1st. What, then, are the rights of the Messrs. Harrisons in the ferry, which it is alleged, have been infringed by the charter granted to the Irwinton Bridge Company 1 They set up none in their bill, by grant from the State or otherwise. It is claimed by counsel in the argument, as an incident to their ownership of the land on this Bank of the Chattahoochee river, and for which they hold a deed of conveyance from the State. It is insisted, that inasmuch as they purchased from the State, they had a right to believe that this privilege was appurtenant to their deed, and that they would be protected without molestation or disturbance, in its enjoyment; that it is inseparable from their title to the property; or, to state the proposition with more technical precision, and with greater force for the complainants, that inasmuch as the sovereign, as the owner of the land, possesses the power of transporting persons, his grant in such cases will communicate the whole franchise. They insist, moreover, that it is the height of injustice and tyranny, for the Legislature to pass an Act in direct opposition to their own deed, and which so depreciates the value of their ferry, that it is not worth continuing.

Are these claims well founded 1 It is not necessary to go extensively into the doctrine of riparian rights. Rivers are of three kinds : 1st. Such as are wholly and absolutely private property. 2d. Such as are private property, subject to the servitude of the public interest, by a passage upon them. The distinguishing test between these two is, whether they are susceptible or not of use for a common passage. 3d. Rivers where the tide ebbs and flows, which are called arms of the sea. People vs. Platt, 17 Johns. 211. Hooker vs. Cummins, 20 Johns. 90. 4 Burr, 2164, per Ld. Mansfield. It is not pretended that the Chattahoochee is at this point a navigable river, where the tide ebbs and flows ; such is notoriously not the fact; it belongs to the second lass or division in the foregoing enumeration. Now, it is well settled in England, and the doctrine is pretty uniform in this country, that the proprietor of the land on the margin, owns the bed over which the river passes; and though it be nominally and in terms, bounded on the margin, it extends, by construction of law, to the middle of the stream. In this case, it reaches to the opposite bank, that being the western boundary of the State. The public right is one of passage, and nothing more, as in a common highway ; it is called in the books an easement, and the proprietor of the adjoining land has the right to use the land and water of tho river, in any way not inconsistent with this easement.

[1.] Has the riparian proprietor the right of ferry ? This point is thus clearly stated by Sir Matthew IPale, in his treatise De Jure Maris : “ The King, by ancient right of prerogative, hath had a certain interest in many fresh rivers, even where the sea doth not flow or re-flow, as well as in the salt or arms of the sea; and these are those which follow : 1st. A right of franchise or privilege, that no man may set up a common ferry, for all passengers, without a prescription, time out of mind, or a charter from the King. He (the oioner) may make a ferry for his own use, or the use of his family, but not for the common use of all the King's subjects, passing that way; because it doth in consequence tend to a common charge, and is become a thing of public interest or use, and every man, for his passage, pays a toll which is a common charge, and every ferry ought to be under a public regulation; that is, that it give attendance at due time, keep a boat in due order and take but reasonable toll; for if he (the ferryman) fail in these, he is finable. Hence it is, that if a common bridge be broken, whereby there is no passage, but by a boat or ferry, it hath been anciently practised in the Exchequer, to compel that ferryman that ferries over people for profit, without charter from the King, or a lawful prescription, to account for the benefit above, his reasonable pains and charge’.”

I need not repeat here the extravagant eulogium pronounced by Mr. Wirt, on this great Judge, on the trial of Burr : that, “ with a mind beaming with the effulgence of noonday, he sat on the bench, like a descended god !” But I will say, what is well known to jurists, that in England, this work, from which the above principle is extracted, is considered as conclusive upon any question relating to the rights of Sovereign or subject, either in the sea, arms of the sea, or public or private streams of water; and that its authority has been repeatedly recognized in this country. 2 N. H. R. 369, 371. 1 Randolph, 417, 420. 1 Halsted, 1, 74. 2 Conn. R. N. S. 481, ’3, ’4. 3 Cain. R. 307, 315, 318.

This, then, is the Common Law principle, and it is obligatory upon us, unless contrary to the constitution, laws or form of government established in this State.

Before proceeding to the examination of our own legislation respecting ferries, it may be well to advert, for a moment, to the views entertained by some of our sister States upon this subject.

In Lansing vs. Smith, (4 Wend. 21,) Chancellor Walworth, as the mouth-piece of the Court of Errors of New York, held this language : “ So long as the constituted authorities of the State did not think proper to interfere, persons navigating the river might come to the wharf, subject to the payment of such wharfage as the State allowed the owner to take. But even the taking of a common wharfage or toll at a ferry, is a franchise subject to the control and regulation of the Legislature, and cannot be lawfully exercised without their permission?’ Citing, Hale, De Jure Maris, Morgan’s Case, de portibus Maris, 51. 4 Com. Dig. tit. Piscary, B. Vanderbilt vs. Adams, 7 Cowen, 349. Wilson vs. The Black Bird Creek Marsh Co. 2 Peters, 245.

In Allen vs. Farnsworth, (5 Yerg. 190,) the Supreme Court of Tennessee say : “ There is no doubt but that the State has the right to establish ferries, whenever the Legislature may deem them necessary for the easement of its citizens. This right of eminent domain, by which the State is authorized to take private property for public use, whenever the necessity of the country requires it, is necessarily inherent in every government. It would follow, from the existence of this right, that a ferry might be established, and a keeper, who is a servant of the public, might be appointed, without any regard to his ownership of the land, should the Legislature so direct.”

In Dyer vs. The Tuscaloosa Bridge Co. (2 Porter, 296,) the Supreme Court of Alabama went far beyond the doctrine contended forby counsel for the defendants below, and maintained that the keeper of a ferry opposite a town, under licensefrom the County Court, keeps it subject to the public convenience ; and the erection of a toll bridge near such ferry, by a Company, under charter from the Legislature, is not a violation of the vested rights of such ferryman ; and that the principle that private property cannot be subjected to public use, without adequate compensation, does not apply to alleged losses sustained by the owner of the ferry, over a public water course opposite a town, and who holds the same under grant from the County Court, by reason of the erection near it of a toll bridge, under a charter granted by the Legislature.

Mr. Justice Hitchcock, in delivering the opinion of the Court, said: “ The Court has not, in the view which it takes of complainant’s rights in this case, found anything in the law complained of, which authorizes its interference. The laying off, regulating and keeping in repair, roads, highways, bridges and ferries, for the public use and convenience of the citizens, is an exercise of the supreme authority of the State, coeval with the institution of civil society, and indispensible to the free exercise of social and commercial intercourse; and as soon as men cease to roam abroad as savages, and lands become appropriated to private use, the reservation for public accommodation, of a sufficiency for these purposes, is necessarily implied, and the mode of regulating its use, is necessarily vested in the State. It is a part of the eminent domain, and as such, is treated by all writers onpublic law.” Citing, Vattel, liber 1, ch. 20, §249. Bynkershock, lib. 2, ch. 15. Domat, lib. 1, tit. 8, §1. He adds: “It is upon this principle that roads are laid out, and that the citizens are compelled to contribute, either in money or labor, to keep them in repair.”

So much for the adjudication of other Courts, respecting this franchise. We will now advert to our own legislation; and it will be found that the people, through the General Assembly, have always claimed the right to control the exercise of this privilege.

The Legislature, in 1805, passed an Act authorizing the Inferior Courts in each County within this State, to establish ferries and bridges, and such rates for crossing thereat, as to them should seem reasonable ; retaining nevertheless, the power, at all times, of making such alterations in the establishments made by the Justices of the Inferior Courts, as to them map seem proper. Prince, 734.

The decisions show that they have this right, without this reservation ; that the grant of a ferry over a public water-course, is a license merely for the convenience of the community, and not such a contract as cannot be interfered with; that whenever the public require greater facilities, they should be afforded; and that if the profits of former establishments are thereby lessened, they have no legal cause of complaint.

And if this be true, how much more have they the power, when it has been expressly retained by Statute % Even had the Harrisons started this ferry under authority of law, and they claim none such, still they would have exercised the privilege, subject to the general law, and must abide the consequences. Surely, by erecting a pourpresture, in the old language of the law, attempting to make that private which ought to be prablic, they cannot relieve themselves from the reservation in the Statute, to which they would have been amenable had they proceeded lawfully.

In 1818, the same law was re-enacted in substance, with the additional provision, that wherever a ferry was established, it was made the duty of the Inferior Court, to cause every ferry owner to give bond and sufficient security, in such sum as they may chink proper, conditioned for their keeping in repair, a good and sufficient flat, and attendance. Prince, 740.

To prove conclusively that the people, collectively, have retained this prerogative, and claimed, at all times, to control its exercise in the hands of the citizen, the Legislature, in 1820, passed a law to regulate the toll on Jersey wagons, in certain cases, throughout the State. Prince, 741. And again, in 1825, considering ferrymen as public servants, they exempted them, by law, from performing militia duty in time of peace. Ib. 741.

The right, then, to receive compensation from travelers and others, for their transportation across a river, on a public highway is, both at Common Law and by Statute, a public franchise ; and from its nature it ought so to be ; for no greater evil could well be imagined than the Unrestrained power, on the part of individuals, to exact from the traveler, who cannot brook delay, nor stipulate for terms, whatever cupidity might exact.

[2.] Our conclusion, therefore, is, that upon the ground of individual right, and without grant from the public, the complainants had no vested right to keep a ferry or transport persons or effects for pay over the Chattahoochee river ; and that even had this ferry been established by authority of law, unless it was founded on valuable consideration, and necessarily exclusive in its nature, the individual right in this, as in all similar cases, would be held subject to the supreme and paramount right of the community.

Before dismissing this subject, I avail myself gladly of the occasion, to return my sincere thanks to the able cotinsel for the plaintiff in error, for the very thorough and satisfactory argument which he submitted upon this branch of the case.

[3.] 2d. It is contended that the Legislature have not only wrongfully destroyed the value of complainants’ ferry, but that they have also wrongfully authorized the taking of their land for the eastern abutment of the bridge.

By the 6th section of the Act of Incorporation, it is provided, “ That the Board of Directors shall have power to select and take, or receive as a donation, such parcel or parcels of lands as they may deem necessary for the construction, convenience, and protection of the said bridge and its abutments, piers, pillars or any thing in any wise belonging to or necessarily connected with the construction and protection of the said bridge; and in case of disagreement between the owner or owners of said land, and the said Board of Directors, in regard to the damages or price of any part of such land, it may and shall be lawful for such Board of Directors to appoint one disinterested freeholder, and for the owner or owners to appoint another disinterested freeholder, as appraisers, and the Justices of the Inferior Court of Randolph County, shall appoint another disinterested freeholder; but if such owner or owners shall decline to appoint an appraiser, then two appraisers shall be appointed by the said Inferior Court; all of whom shall be sworn by an officer authorized to administer an oath, to make and return to said Court a just and impartial valuation of the damages or value of the land thus required by the said corporation, and their demand, (meaning, I apprehend, award,) shall be in writing and signed at least by a majority of said appraisers, which shall be held and taken as a judgment for the amount against the said corporation, and shall be enforced by an execution from the said Inferior Court; and the plat of the said land, with the award, shall be recorded in the said County of Randolph, in the same manner that deeds are, and shall vest the right of the fee simple to the said piece or parcel of land in the said corporation, so soon as the valuation thereof shall be made as aforesaid, and paid for, or when the money may have been tendered and refused Provided, if either party shall think proper, he, she or they may appeal to the Superior Court of said County, and have the damages ascertained by the verdict of a Special Jury, and their decision shall be final.” Laws of Georgia, 1837, p. 141.

[4.] It is conceded that by the Common Law, as well as by the Constitution of the United States, private property cannot be taken for public use, without just compensation, "We see nothing in this Act which conflicts with this principle. Here, as much ground as may be necessary for the bridge', is condemned and authorized to be seized for that purpose ; but before it can be taken and permanently appropriated, a Jury, if demanded, are to> assess the damages, which must be paid before the ground can be used.

"We might content ourselves here, by suggesting that when this Court was organized, the question, as to the power of the Legislature to condemn so much land as was necessary for the construction of bridges, ferries, canals, rail roads and other public highways, by making or tendering adequate compensation to the party aggrieved, was no longer open ; it was res adjudicata all over the' civilized world; it was settled by the Courts of Great Britain, of the Federal and State Governments throughout the American Union, and irreversibly fixed by four or five hundred miles of rail road spanning our State in every direction, and conferring incalculable benefits upon our people.

But I am not willing to ensconce myself behind my predecessors, the pioneer generation in these great enterprizes.

To listen to the fervid and impassioned eloquence of counsel, one would conclude, that instead of its being a legitimate exercise of power, it was a gross and palpable usurpation by the' Courts and the Legislature ; one too, calculated to rob the people of their liberties, to plunder their property, to break down all the barriers around their rights ; in short, to make them vassals to power and slaves to wealth !

It would seem to be strange and unaccountable, that a despotism so desolating, a power so monstrous, and revolting, should not have encountered a more formidable opposition. The people must be miserably tame or stupid, or else (what we suspect to be true,) this picture is overwrought, too highly colored. Any other conclusion would be a libel on the past history and patriotism of the country.

No one, I believe, denies to the State the right to construct a public road any where and in any way that it may think proper. It has been exercised repeatedly and time immemorially, and without complaint. This, at least, is one. of the cases, I believe, where all agree that individual right must yield to the public good. It is decided in 2 Bay’s S. C. R. 38, that the Legislature of the country is vested with the power to pass laws for laying off roads and highways in any part of the State, and to appoint commissioners to see them kept in repair, whenever they may think convenient and proper, without any compensation to the owners of the land through which, they run. This, the Court say, is a part of the lex terree, a condition attached to all freeholders, and which existed before Magna Charta.

And it seems to have been overlooked, that we have a law in Georgia, passed 50 years since, and universally acquiesced in, and which asserts the identical principle which is now so strenuously resisted, viz : that although a citizen may hold a grant in his ’ pocket to his land, yet a public road may be laid out through it, and if the owner feels aggrieved, he shall submit to the arbitrament and award of a Jury of Ms country, the question of injury. Prince, 1st ed. p. 399. Every public highway and bridge in the State has been constructed, and for thirty-five years from 1799, to the date of the Act, incorporating the first rail road without complaint, upon this principle.

[5.] Shall it be said that these were public roads, and laid out for the general welfare 1 I ask, who is to be the judge ,of what is or is not for the public use, but the people themselves, speaking through their representatives, simply because it is inconvenient, if not impracticable, for them to assemble in mass and decide these matters % To make a thing of public use, it need not, I apprehend, be used as a public common; nor must it be in the continuedoccupancyofthe agents of the Government. Suppose all Georgia were congregated together, and it should be determined that the public good made it expedient and highly advantageous, to erect every public work which now exists, and which gives us such a proud pre-eminence among our Southern sisters, who doubts the power of the people to construct these rail roads, canals and bridges, and to seize and appropriate private property for that purpose, allowing to the owner, if his injury exceeded his share of the common advantage, to be compensated by a Jury 1 If the State could do this directly, what is there to prevent it being done by contract 1 Would it be constitutional to call out the people, with their slaves, axes, mattocks and shovels, to build a rail road, or to tax them, as has been done in this State and every other, at the rate of $15,000 to $20,000 a mile for that object, and take and appropriate the citizens’ land for its use 1 If so, why is it unconstitutional to grant a charter to a Company to have this done at such an immense saving of burdens, personal and pecuniary 1 Suppose it were submitted to a popular vote, to determine whether our Western & Atlantic Rail Road, now in a course of completion, should have been built by a private Company, charging moderate fare and freights, as were the Georgia, Central, and Macon & Western Rail Roads, or by taxes or personal labor 1 Would they hesitate to choose the corporation system ? To doubt it, would be a gross reflection upon their intelligence.

If the people may lawfiflly exercise the right, they may transfer it. A few years since, our people were taxed to buy negroes to work on the public roads, and agents were employed and paid to superintend them. Nobody questioned this exercise of power. The community are entitled to the best roads. If it is cheaper to get others to construct them, than to do it themselves, where is the mischief ? It is only employing the best instrumentality, for accomplishing the great system of internal improvement demanded by the age, and still more by the inexhaustible resources teeming in every portion of our State, and which need only the proper encouragement for their development; resources, in comparison with which, all the gold of California is but dross; and which lay buried in the bowels of the earth, or rotting on its surface for half a century, for want of the necessary facilities to make them available!

Civilization mast advance ; the improvements of society, diffusing plenty and prosperity, knowledge and refinement and morality all around, must not, cannot be restrained; public opinion has willed it, decreed it, and there is no higher power to which to appeal — Vox populi, vox Dei.

I cannot forego the pleasure of transcribing here, the eloquent and appropriate remarks of the late Chief Justice Lipscomb, upon this subject: “Within the last three or four years, numerous charters, containing provisions for' condemning private property, have been granted to Rail Road and Canal Companies; and although it is not contended that error sanctions error, we should be well convinced that those States have erred, before we are at liberty to discard the force of the argument, deduced from the fact, that such power has been exercised by those intelligent and patriotic Legislative bodies, and that this power has never been judicially impugned. Reference to the time when these charters were granted, gives additional weight to the argument; for if there ever was a time when the powers of Government were diligently and critically investigated, it is the period of the enactment of those charters. It is a truth that will not be controverted, that the whole history of the past ages, presents no period of time when the powers of Government have been subjected to as jealous and severe scrutiny, as the age in which we live. The people know and justly appreciate, not only their rights, but their own power, and they are too vigilant to permit them to be abridged by their rulers. Virginia, the mother of Washington, Henry, Pendleton, Wythe and Jefferson, and a host of other departed apostles of liberty, over whose names and memory, ‘time shall achieve no conquest’ — Virginia, always on the watchtower and ready to cry aloud and give the alarm, at the slightest encroachment on personal liberty and private right — she, too, has, within the last two years, (1832,) granted several charters to Rail Road Companies, containing precisely the same provisions. And is Alabama alone to be arrested from indulging the public spirit of her citizens, and marching hand in hand with her sister States, in the great work of internal improvement, by a conscientious jealousy of Federal interference, on the one hand, and an inability to give efficiency to the efforts of public-spirited individuals in the cause, on the other? The grant to the corporation was intended to be a public benefit. The prosperity of the stockholders isinseparabio from that of the community. By adding to the convenience, wealth and general prosperity of the people alono, can the stock be made profitable. It only remains for me to inquire, if a sufficient provision has been made to secure to the owner a just compensation for his property, to be ascertained according to the due course of law.” 2 Stewart’s R. 213.

When this case was up before, the Court admitted that the Company had the right tp enter upon the land of the complainants, and to make the necessary surveys, and to take all other preliminary steps for locating the eastern abutment of the bridge; but denied to them the right to appropriate the private property of the complainants to their permanent and exclusive use, until just compensation had been made or tendered, in terms of the charter. 3 Kelly, 45. The same doctrine is re-affirmed in Morris vs. the Macon and Western R. R. Co. Ib. 338. We are not disposed to go now beyond this. Where property is appropriated by the Government in time of war, for provisioning armies, supplying the means of transportation, destroying all the means of subsistence to arrest the progress of an invading foe; in these and all other cases of like necessity, private property is subjected to the public uso, before compensation is or can be made. To require this as a condition precedent would render the right itself nugatory. Indeed, where the State is the debtor of the citizen, the public faith is the only guarantee which the owner needs or can ask. Nor can the Courts presume any thing to the contrary. But when the equivalent is to be made by a private person or corporation, compensation should be made or tendered before the party will be allowed to take exclusive occupancy of the property.

In this case, that has not been done, although, as we feel warranted from the evidence disclosed in the record before us, it has been attempted in good faith. We cannot, therefore, direct the injunction to be dissolved. We will, however, under the facts and circumstances, grant further time to enable the Company to comply with their charter, and in the meanwhile pass such order as will protect the property from decay, and give to the public the use and enjoyment, leaving the fund arising from the tolls, in the hands of the Chancellor, to be paid over to the rightful owner, whenever the conditions of the charter are performed.

3d. It is contended that the Irwinton Bridge Company has been dissolved by the Legislature, and that, therefore, they have no rights to be protected in this or any other Court.

Two Acts were passed by the last Legislature in reference to this corporation. One bears date the 28th of December, 1847, and directs His Excellency, the Governor, to cause judicial proceedings to be instituted, in the Superior Court of the County of Randolph, for the purpose of forfeiting the charter granted to this Company in 1837. The other is dated on the 29th of the same month, one day thereafter, and declares the Act of 1837, incorporating the Company, to be repealed, upon the ground that certain conditions were therein prescribed, upon compliance with which depended the privileges therein granted; that ten years had already elapsed, and that the terms of the charter had not been performed, to the great injury of James and Samuel Harrison, upon whose land the eastern abutment of said bridge rests,

"With the first of these Acts, the Court at present have nothing to do. It is meroly directory in its character, and we are bound to suppose that the duty which it enjoins will be properly and legally discharged.

Is the Act of repeal valid and obligatory upon this Court? To-investigate the constitutionality of an Act of the co-ordinate-branches of the Government, is always a delicate and painful duty. But when the rights of individuals are concerned — right® recognized and secured by a judgment of the highest judicatory of the State, and the question is thus distinctly presented — we cannot falter. Upon the faithful discharge of duty by the Judiciary depend, in no small degree, the integrity and duration of Government itself.

No Court in this Union has gone farther, I might in truth say, so far, as this tribunal, in maintaining the just constitutional rights of the law-making power. See Flint River Steamboat Company vs. Foster, 5 Georgia Reports, 194. If, however, it should be found that the law in question is not sustained by the Constitution, we are bound to pronounce it void. For myself, I can declare, with the utmost sincerity, that the Acts of the last Legislature, beyond any since 1799, command my most cordial and unqualified admiration. But the Act under consideration bears upon its face the evidence of haste and inconsideration. After having directed the Governor to cause proceedings to be instituted, with a view to forfeit the charter, why the very next day attempt to forestall these proceedings by declaring the charter already forfeited ?

Again, the Act assumes that ten years have already elapsed, and that the conditions of the charter have not been complied with, and for this reason, the privileges which it confers are recalled. And it is stated in the argument, that this assumption is based upon the former judgment of this Court in this case. If so, I regret to say that the whole tenor of that decision was altogether misconceived. It is certainly true, that it admits the fact that the terms of the charter have not been complied with. But what terms % Not that the bridge has not been built, the only purpose for which the charter was granted. This has been done long since. Why the very gravamen of the Bill now under review, is to restrain thd Company, or their assignees, from opening the bridge for the public use. The failure is, that the owners of the land have not yet been paid for their property; and the record and judgment of this Court so far acquit the Company from censure on this score, that it was considered equitable and right to allow further time for this purpose. Had the case been fully understood, it would have been seen, that the Court was convinced that the Company had manifested the utmost good faith in their efforts to comply with the requisitions of their charter in this particular, and were prevented from doing so by the persevering refusal of the other party to come to any agreement, and a mistake, clerical or otherwise, to have the appraisers appointed by the proper Court, to assess the value of the land on which the eastern abutment of the bridge stands. The Justices of the Inferior Court, sitting as they frequently do, for Ordinary and County purposes, on the same day, the ajDpdication was recorded on the minutes of the former instead of the latter; and the owners of the land, not the Company, taking advantage of this mistake, rejected the compensation which was assessed and tendered. And this is the failure referred to in our former judgment. And now it is said, that it was upon this that the Act of dissolution was predicated!

[6.] Had the Act of repeal proceeded upon the idea, that the charter of 1837 was improvidently granted, the assumption would have met my hearty approval, whether its constitutionality could have been sustained or not. A bridge was needed, I have no doubt, at the point designated. A ferry transports persons and giant; it "i franeffects with more delay and less safety. Public convenience, therefore, demanded this erection. But the Legislature was under no obligation to grant this franchise to the Irwinton Bridge Company. If made to any one, it should have been to the owners of the soil where the bridge was to be built. In the exercise of the right of eminent domain, regard should always be had to the interest of the citizen; and whenever the public good requires that he should relinquish his property for the common use, a preference should be given to him over a stranger, and he should, if he would, reap the profits. This would reconcile him to his loss or forced contribution to the eonyjp¿^¡^lg¿¿j^community. A grant to another, therefore, is unjust to the proprietor of the freehold. \It isnould never oe arbitrarily or capriciously done. If the owjSi^rjGj^n"K'will iot receive the franchise, pay him for his p: another. Usually he will gladly accept tlj psivili presumed to consult their interest. If, b$M:easón o; other cause, he cannot use it himself, he can chise to others. I speak as aman; if the charter óf 1837 was conferred over the heads of the owners of the soil, or without notice to them, it was wrong, and their subsequent conduct is neither to be wondered at, nor stigmatized. The yare entitled to sympathy rather than censure. I would think it expedient to pass a general law, giving to the owners of land, over strangers, the preference in all such cases, so far as it was practicable.

But to the constitutional question. The doctrine is thus stated by Angelí S; Ames: — “ By the theory of the British Constitution, Parliament is omnipotent; and hence, an Act of that body would undoubtedly be effectual to the dissolution of a corporation. It is to the honor of that nation, however, that this power, restrained by public opinion, rests mainly in theory; and, except in the instances of the suppression of the Order of Templars, in the time of Edward the Second, and of the religious houses in the time of Henry the Eighth, we know of no occasions on which Parliament have thought proper to dissolve, or confirm the arbitrary dissolution of corporate bodies. When, in 1783, a bill was introduced for the purpose of remodelling the charter of the East India Company, it was opposed by Mr. Pitt and Lord Thurlow, not only as a dangerous violation of tho charter of the Company, but as a total subversion of the Law and Constitution of the country. In tlie nervous language of the latter, it was 1 an atrocious violation of private property, which cut every Englishman to the bone Corporate property and franchises, important as they usually are in amount and extent, and undefended by the same strong sympathies which guard individual rights, offer a more tempting and easier spoil to misguided power, whether it resides in the Prince or the people. It is a happy feature in the Constitution of our own Government, that the power of the Legislatures of the different States resembles, in this particular, the prerogative of the Ring of Great Britain, who may create, but cannot dissolve a corporation, or, without its consent, alter or amend its charter. In the tenth section of the first article of the Constitution, it is declared — ‘ No State shall enter into any treaty, alliance or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender inpayment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligations of contracts, or grant any title of nobility.’ And in this clause it has been settled, that the charter of private corporations, whether civil or eleemosynary, is an executed contract between the Government and the corporators, and that the Legislature cannot repeal, impair or alter it, against the consent, or without the default of the corporation, judicially ascertained and declared.” Angelí and Ames on Corporations, 502.

Chancellor Kent calls this a great principle of constitutional law, settled in the case of Dartmouth College vs. Woodward, and asserted and declared, by the Supreme Court of the United States, in numerous other cases antecedent to that decision. 2 Kent’s Com. 306. 4 Wheat. 518. 6 Cranch, 88. 7 Ib. 164. 9 Ib. 43. Ib. 292. 8 Wheat. 1. 2 Mass. 143. 1 Paige’s Ch. Rep. 107. 7 Conn. Rep. 53.

[7.] Anciently, it was doubted whether a corporation could be dissolved at all for a breach of trust. It is now well settled that it may; but then it must be first called upon to answer. 12 Mod. 271. 5 Johns. Ch. Rep. 380. 2 Term Rep. 515. Canal Company vs. Rail Road Company, 4 Gill & Johnson, 1. Story J. 9 Cranch, 51. Lord Holt in London vs. Vanaire, (12 Modern,) said: “ All privileges are granted on condition that they shall be duly executed according to the grant, and if they neglect to perform the terms, the charter may be repealed by scire facias”

The forfeiture of corporate franchises, by non-user or misuser, was fully discussed in the case of The King vs. Army, 2 Term Rep. 515; and it was held, that although a corporation may be dissolved, and its franchises lost by non-user or mis-user, yet it was assumed as an undeniable proposition, that the default was to be judicially détermined in a suit instituted for the purpose.

Mr. Justice Story, in delivering the decision of the Supreme Court in Terrell and others vs. Taylor and others, (9 Cranch, 51,) says: “ A private corporation, created by the Legislature, may lose its franchises by a mis-user or a non-user of them, and they may be resumed by the Government, under a judicial judgment upon a quo toarranto to ascertain and enforce the forfeiture.”

The same doctrine underwent a most thorough examination in the Canal Company vs. the Rail Road Company, 4 Gill and Johnson’s Rep. 1 — the case occupying 273 pages. It was there ruled, among other things, that the charter of the Potomac Company was a contract between the States of Maryland and Virginia and that Company, the obligation of which could not, without the assent of the corporation, be impaired by any Act of the Legislatures of either of those States, nor by the concurrent Acts of both, consistently with that section of the Constitution of the United States which declares that “ no State shall pass any law impairing the obligation of contracts;” that in ordinary cases, the State may repeal or modify, at pleasure, any act of incorporation granted by it, before it is accepted, and when no rights have been acquired under it; that, until accepted, it is not a grant, nor the public faith pledged not to impair it; that a corporation may forfeit its charter by non-user or mis-user of its franchises; but, say the Court, it is well known, that such forfeiture can only be enforced at the instance of the Government, and that no cause of forfeiture can be taken advantage of, collaterally or incidentally, and that the proceedings for breach of the conditions should be by scire facias or quo warranto.

The doctrine intimated in this opinion, that a charter granted without consideration, and before its execution, so as to create any rights or duties, which, in contemplation of law, may be impaired, may be repealed by a subsequent Legislature, has often been maintained by the Courts of this country. Trustees of the Bishop’s Fund vs. Rider, 13 Day’s R. 87. Fletcher vs. Peck, 6 Cranch, 87. New Jersey vs. Wilson, 7 Cranch, 164. Terrell vs. Taylor, 9 Ib. 43. Sturges vs. Crowningshield, 4 Wheat. R. 122. Dartmouth College vs. Woodward, 4 Wheat. R. 518. Green vs. Biddle, 8 Wheat. R. 1. Atwater vs. Woodbridge, 6 Conn. R. 223. Osborne vs. Humphreys, 7 Conn. R. 336. The Derby Turnpike Co. vs. Parks, 10 Conn. R. 522. London vs. Litchfield, 11 Ib. 251. The People vs. Platt, 17 John. R. 195.

In Slee vs. Bloom, 5 John. Ch. R. 381, Chancellor Kent held that the forfeiture of corporate rights must be judicially ascertained and declared; and that corporate power which may have been abused or abandoned, cannot be taken away but by regular process. He considers all the cases with his usual scrutiny and discrimination, and expresses a belief, that there is no instance of calling in question the rights of a corporation, or body, for the purpose of declaring its franchises forfeited and lost, but at the instance and in behalf of the Government. It is true that this decree was reversed in the Court of Errors, not, however, upon the ground that the Chancellor’s position, so far as it related to the acts of non-user or mis-user, was incorrect. Spencer, Ch. J. who gave the unanimous opinion of the Court, said — “ upon the authorities and for the reasons given by the Chancellor, mis-user or non-user cannotbe relied on as a substantive andspecific ground of dissolution.” The reversal proceeded upon the fact, that the corporation in question had surrendered their franchise.

[8.] It would seem tobe wholly useless to multiply precedents— there is no end to them. The doctrine at this day is well settled, that a private corporation is a contract between the Government and the corporators, and that the Legislature,cannot repeal, impair, or alter the rights and privileges conferred by the charter, against the consent and without the default of the corporation, judicially ascertained and declared, in a proceeding instituted directly for that purpose, at the instance of the Government; and that no advantage can be taken of any non-user or mis-user on the part of a corporation, by any defendant in any collateral action.

For the reasons assigned, therefore, the judgment of the Circuit Court must be affirmed, and the cause remanded, with the following instructions : It is the opinion of the Court—

1. That the complainants in the bill have shown no right, by grant from the Legislature, or otherwise, to their ferry across the Chattahoochee river; and that, consequently, they have no property therein, which would entitle them to enjoin the defendants, upon the ground of injury to or interference with said ferry.

2. That the Irwinton Bridge Company, or tlieir assignee, had the right, under their charter, to enter on the land of the complainants, and make the necessary survey, and take all other preliminary steps for the purpose of locating the eastern abutment of their bridge, before compliance with the provisions of their charter ; but that they have no authority to appropriate the private property of the complainants to their permanent and exclusive use, until adequate compensation is made or tendered in terms of their charter.

3. That the pleadings show, that the Company have built .the bridge, and are in possession thereof, and that they have not yet complied with the requisitions of their charter; they are therefore trespassers upon the land on which the east end of the bridge stands, and the injunction restraining them from the use and enjoyment of said property must be retained.

4. That the record shows diligence on the part of the defendants, to comply with the conditions of their charter, and that farther time be allowed them for that purpose.

5. That mandamus is not the proper remedy to correct the errors of the Inferior Court; that the said Court, under the charter of 1837, are ministerial officers only; and that their decision upon the rights of Edward B. Young, for the appointment of commissioners-to assess the value of complainant’s land, is not conclusive, and the said Young is entitled to renew his application, and that a certified copy of this and the former judgment of this Court is conclusive evidence that he is entitled to have said appointment made. ‘

6. That it is not competent for the Legislature to divest said assignee of the rights which he acquired by the judgment of this Court heretofore rendered.

7. That a receiver be appointed by the Chancellor below, who, after giving bond, with approved security, in a suitable sum, for the faithful performance of bis duty, shall take possession of the bridge in controversy, complete the repairs thereto, and open the same for the public use; and that, after defraying the expenses of repairing and keeping in order said bridge, retaining just compensation, to be adjudged and allowed by the Chancellor, and every other necessary outlay, thathe retain the balance of the toll money in his hands, subject to the future order and decree of the Chancellor, as to the rightful ownership thereof.

8. That upon compliance by the Irwinton Bridge Company, or their assignees, with the provisions of their charter, that the cross injunctions now pending between the parties, be, by the Chancellor, both dissolved, and the bridge, with its appendages, be ordered to be delivered over to the defendants in the bill.