Trent v. Cartersville Bridge Co.

This record has been reviewed for basic accuracy, correcting any discovered errors.
Docket No. Op. Below Argument Opinion Author Term
- - - - - - February 15, 1841 Allen, J. 1841

Holding

By an act of assembly, passed in March, 1819, a ■company was incorporated by the name of Tim Cartersville Bridge Company, and privileges were given to the company to build a bridge across James river at Cartersville, and to demand and receive certain tolls for passage and transportation over the same. The company was formed, and the bridge built, according to the charter.

There was an ancient public ferry across the river at Cartersville, which was still existing at the time the act of incorporation of the bridge company was passed, and of which Randolph Harrison was then the owner. If the building of the bridge might establish a competition with the ferry that might impair or wholly destroy its profits, yet the charter of the bridge company did not directly take away or touch the rights of the-ferry owner; and for some time (though [not long) after the bridge was built, he kept up the ferry.

In 1836, the Cartersville bridge company exhibited a bill in chancery against John Trent and eight others-, in the Circuit Superior Court of Cumberland, in which, after setting forth their charter, the erection of the bridge in pursuance thereof, and the existence of Harrison’s public ferry, they alleged, that after the bridge was completed, some of the members of the company purchased Harrison’s right of ferry from him, and then made a lease thereof to the company, whereby they became entitled to the ferry during the term of the lease which was not yet expired. That as the bridge furnished a much more convenient mode of passage and transportation than the ferry, the latter, after the purchase and lease thereof to the company, fell into disuse, though a ferry boat was constantly kept near by, in readiness to be brought into use, if and when it should be required for the accommodation of the public; but it had not been required, (except at intervals when the bridge was out of repair,) till the (then) present year, when a part of the bridge having been destroyed by fire, the company [put the ferry and ferry boat into use for passage and transportation while they were repairing their bridge. That eajqy ^ ^hen) present year the defendants, most of whom resided near the bridge or had frequent occasion to cross the river at thatpoint, without having any interestin the ferry, or any pretence of right to have and use a ferry at or near the place, and without owning the lands on either shore of the-river at the ferry landings, combined together, and put a boat on the line of the ferry, and had ever since been using the same as a ferry boat there, for the transportation of themselves, their servants, horses and carriages, and of such other persons and things as they have thought proper to transport. That the company was not informed what provision, rules or regulations the defendants had made for the support of their ferry; or whether the expenses thereof were defrayed by contribution among themselves, or by tolls exacted, or moneys taken under the name of gratuities, from persons using the boat; but in whatever way this unauthorized ferry was maintained, it had produced, and was producing, great and increasing •detriment to the bridge company by the subtraction •of their lawful tolls and profits. That the company was advised that Harrison’s ferry was a subsisting franchise, vested in them during the term of their lease, the non-user of which, under the circumstances, was no ground of forfeiture, and if it were, the forfeiture of the franchise could only be accomplished by the judgment of a court of competent jurisdiction; and even if the franchise had been forfeited, it had been thereby reinvested in the public, and could not be exercised except under public authority duly conferred : that if Harrison’s ferry was a subsisting franchise, the conduct of the defendants was a plain encroachment upon the rights of the bridge company as the owners thereof for the term of their lease; and if the ferry was forfeited, the conduct of the defendants was an assumption of public rights without authority, and was a fraud upon the rights of the bridge ■company; so that in every view, the combination and conduct of the defendants complained of, was not less a violation of the lawful rights and privileges of the company than it was detrimental to their interests. That, in fact, tolls and profits had been and were being withdrawn, by the combination and conduct of the defendants, from the bridge company, to such an amount, as to render it certain, that if the bridge combination of the defendants was not suppressed, the bridge, a highly valuable and useful improvement, in-which the public was interested, must be abandoned. That the sole motive and design of the defendants in combining to run their ferry boat, was to evade payment of tolls to the bridge company. And that the conduct of the defendants could not be justified or excused by -any pretence of misconduct or neglect of the bridge company in the performance of their duties, or any failure, on their part, to furnish at all times prompt and safe passage and transportation across the river, or of superior convenience to the defendants or others in the use of the ferry boat they had put there, over the means and transportation furnished by the company’s bridge and ferry. Therefore, the bill prayed an injunction to restrain the defendants from keeping or using, or causing to be kept or used, the ferry boat they were then using, or any other boat, for the transportation of persons or property across James River at Oartersville, either for toll or free of toll; and general relief.

The injunction was awarded.

The defendants, in their answer, stated, that they had understood, that certain individuals had, within some six or seven years past, purchased Harrison’s ferry from the former proprietor thereof, but that they had no knowledge of the lease of that ferry by the purchasers to The Oartersville Bridge Company men^onec[ ;n -¿]ie and called for proof thereof, and of the alleged right of the bridge company in and to the same. That Harrison’s ferry had been wholly disused for more than three (and indeed for five) years; and so that ferry,’and the ferry right, had been discontinued’ and forfeited.* That it was true the bridge company had built a bridge across James Hi ver not far from Harrison’s ferry, and had demanded and received tolls for passage and transportation over their bridge; but a competition was for some time kept up between the bridge company and the proprietor of the ferry, to the great convenience and accommodation of all who had to cross the river at Oartersville. That no boat having been kept at the ferry for five years, until recently when the bridge was partially destroyed by fire, the public had been forced during all that time to use the bridge for crossing the river, whether they chose or not, or to adopt some private mode of passage and transportation. That the citizens of the neighbourhood reluctantly acquiesced in this state of things, so> long as tlie bridge company afforded them the accommodation they had always before enjoyed, in the payment of tolls for crossing the river; but the company, during the preceding winter, had determined that no one should cross the river upon their bridge, without paying the tolls in cash at the time of crossing; an exaction most vexatious and oppressive upon those who were obliged to use the bridge weekly and daily in crossing and re-crossing. That the defendants, rather than submit to a regulation so harsh and inconvenient, had resolved to use their own private means of transportation across the river; they had established and kept a ferry boat, for their own use •only, from one of the ancient public landings to the other on both sides of the river, as they were advised they had a legal right to do; and though others besides themselves might occasionally have used their boat for passage and transportation, they had never asked or received from them any tolls or reward, but on the contrary had expressly forbidden that any should be exacted. That at the time they established their ferry boat, there was no ferry boat kept at or near the ferry landing on the river; and none had been kept there, nor was any person in actual possession of the ferry, nor had any person been in possession thereof, for more than three years. And that the defendants claimed the right of crossing James river, which was a public highway, when and where, and in any boat or other vessel of their own, as their own convenience, or their pleasure, should dictate, .and to land at any public landing on the river which was free for the use of all citizens.

There was no proof, that the bridge and Harrison’s ferry were designed and calculated to accommodate the same travel and transportation.* It was only ■proved, that the public landings which had been used for Harrison’s ferry, and the abutments of the bridge, on both sides of the river, were about three hundred yards apart.

There was no competent evidence that Harrison’s ferry had been purchased from the former proprietor, or that it had been leased to the bridge company, as ¡alleged in the bill; though enough appeared to render it probable, that the allegations of the bill as to those particulars were true.

It was proved, that Harrison’s ferry ceased to be used m 1833, and the ferry boat before used there was’ ^en transported by the bridge company, to a mill pond about a mile and a half from the ferry, where it could be better preserved, ready for occasional use, ^an *n r*ver or ^ie ferry landing; and that after the injury to the bridge by fire early in 1836, the boat was brought back to the river, repaired, and used by the bridge company for the transportation of persons and property at Harrison’s ferry, until the bridge was repaired.

There was no proof, that the defendants had ever demanded or received any toll or reward for the transportation of persons or property in their boat across the river. It was proved, that they kept the boat there in continual use for themselves, crossing to and from the ancient public landings; and that other persons and their property were sometimes put across the river in their boat, but without compensation asked or received.

The loss to the bridge company, by the subtraction of tolls, which the defendants, and other persons who were occasionally accommodated with the use of the defendants’ boat, would have had to pay if they had crossed the bridge, was estimated at about a hundred dollars per annum.

Hpon this state of the pleadings and proofs, the defendants moved- the court to dissolve the injunction,, and the court overruled the motion. Whereupon the defendants applied by petition to this court for an appeal; which was allowed.

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