under the general laws. It is at least doubtful if it has the constitutional right to do so. It would not be "wholesome and reasonable" legislation, within the meaning of the Constitution, to grant to a commercial corporation, established under general laws for purposes of profit, the right to obtain, without payment, a valuable privilege, for which a city or town has been compelled, against its will, to pay.

An argument has been drawn from the judicial sanction which has been given to the use of streets for drains and sewers, and for gas and water-pipes. But there is a palpable distinction between such uses and that for the establishment of a telegraph line. It may be said, in a general way, that, when a highway is laid out, the whole beneficial use of the soil is temporarily taken from the owner and appropriated to the public use; and ordinarily the laying of underground pipes, in such a manner as to cause no injury to the adjoining land, does not deprive the owner of the fee of any use which he could otherwise have made of the soil. Ordinarily, therefore, he cannot be deemed to suffer any legal injury from the laying of underground pipes. A different question, however, might by possibility arise, if such pipes interfered with underground operations which the owner might carry on, notwithstanding the existence of the highway. Then, again, sewers and drains are built more directly by public officers, and usually are of direct benefit to the abutting estates, as well as to the streets themselves. The advantage to abutting owners is so apparent, that, under our Statutes, they may be assessed for the expenses of construction. Gas-pipes also are likely to be of direct service in furtherance of the purposes for which streets are laid out, aiding public travel, and benefiting the abutting lots. There is a general recognition that all these uses are directly subservient to the purposes for which highways are established; and, by Statute, towns are authorized or required to lay water-pipes, erect watering-troughs and fountains, set out and maintain shade trees, erect guide-posts, and erect and maintain street lamps. Pub. Sts. c. 27, §§ 37, 50; c. 53, §§ 1-4; c. 54, § 9. But the erection of telegraph lines along a highway is of no direct and peculiar benefit to travellers upon the highway, to the highway itself, or to abutting estates; and, as has been seen, such lines do or may interfere materially with the beneficial use and enjoyment which the owner of the soil might otherwise have of his estate.

The fact that the Statute provides that no permanent easement shall be acquired by a telegraph company is not material. While the line

exists, the injury to the owner is continuous; and he is deprived, without his consent, of the rightful use of his property for a period which, though indefinite and liable to be determined, may yet be perpetual, and which he himself is powerless to bring to an end.

The authorities which hold that using a highway for a steam railroad imposes an additional servitude, for which the owner of the fee is entitled to additional compensation, go farther than is necessary to support the view above taken. The case of Attorney-General v. Metropolitan

Railroad, 125 Mass. 515, related only to horse railroads, and leaves it an open question in this State as to steam railways. The case of Callender v. Marsh, 1 Pick. 418, 431, as to damage caused by changing the grade of the street, has always been recognized as a hard case, and an intimation was given at the time that the Legislature might well interfere by general or special Statute for the relief of parties so injured. The doctrine of that case should not be extended. In Young v. Yarmouth, 9 Gray, 386, the telegraph line was established, so far as appears, by the landowner's consent, and no question involving his rights arose or was considered.

As to elevated railroads, it was held by a majority of the justices of the New York Court of Appeals that an abutting owner, even if he does not own the fee of any part of the street, has such a property as to be entitled to additional compensation. Story v. New York Elevated Railroad, 90 N. Y. 122. The case would be much stronger if he owned the fee. In the Supreme Court of New York, and in the United States Circuit Court for the Northern District of Illinois, and in the Supreme Court of Illinois, it has been held that the use of a highway for a telegraph line will entitle such owner to additional compensation. Dusenbury v. Mutual Telegraph, 11 Abb. New Cas. 440; Atlantic & Pacific Telegraph v. Chicago, Rock Island & Pacific Railroad, 6 Biss. 158; Board of Trade Telegraph v. Barnett, 107 Ill. 507.

For these reasons, we are of the opinion that the demurrer should be overruled.1

1 Grass cannot be taken from a highway without compensation to the owner of the fee. Woodruff v. Neal, 28 Conn. 165 (1859). Nor can a market be put on a highway. State v. Laverack, 5 Vroom, 201 (1870). A statue however may be placed there. Tompkins v. Hodgson, 2 Hun, 146 (1874).

See on elevated railroads, and on damages for the injury from them to adjoining estates, the owners of which do not own the fee in the highway, Story v. New York Elevated R. R. Co., 90 N. Y. 122 (1882). Cf. Indiana, Bloomington, &c., R. Co. v. Eberle, 110 Ind. 542 (1886).

CHAPTER VI.

FRANCHISES.

2 BL. COм. 37. Franchise and liberty are used as synonymous terms; and their definition is a royal privilege, or branch of the king's prerogative, subsisting in the hands of a subject. Being therefore derived from the Crown, they must arise from the king's grant; or in some cases may be held by prescription, which, as has been frequently said, presupposes a grant. The kinds of them are various, and almost infinite: I will here briefly touch upon some of the principal; premising only, that they may be vested in either natural persons or bodies politic; in one man or in many: but the same identical franchise, that has before been granted to one, cannot be bestowed on another, for that would prejudice the former grant.1

3 BL. COм. 219. If a ferry is erected on a river, so near another ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, for the ease of all the king's subjects, otherwise he may be grievously amerced; it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burden.

IPSWICH v. BROWNE.

EXCHEQUER CHAMBER. 1581.

[Reported Sav. 11.]

IN the Exchequer Chamber it was held for law that a ferry is in respect of the landing place, and not in respect of the water; that the water may belong to one, and the ferry to another, as it is the case with the ferries on the Thames, that the ferry in one place belongs to the Archbishop of Canterbury where the Mayor of London has the inter

1 See Charles River Bridge v. Warren Bridge, 11 Pet. 420 (1837). See on Forests, &c., Wms. Commons, Lect. xvi.

Magna Carta, c. 16 (1225) provides that "no banks shall be defended from henceforth but such as were in defence in the time of King Henry our grandfather, by the same places and the same bounds as they were wont to be in his time." See Malcomson v. O'Dea, 10 H. L. C. 593.

2 See Letton v. Goodden, L. R. 2 Eq. 123.

est in the water. And if one has piscary in any water, he has no power to land without the assent of the owners of the freehold.

And in every ferry the land on both sides of the water must belong to the owner of the ferry, else he cannot land on the other side.1

And a ferryman, if he be on a salt water, is to be privileged from being pressed as a soldier or otherwise. And this was said in a case between the Inhabitants of Ipswich and Philemon Browne.

LORD ABINGER, C. B.2 This was an action on the case for the disturbance of the plaintiff's ferry over Milford Haven, tried before my Brother Parke at Haverfordwest. It was claimed in the declaration in different ways; but the question reserved for the consideration of the court arises on the count which complains of a disturbance of Nayland Ferry.

The plaintiff was the lessee, under Sir John Owen, of a ferry, called the Pembroke or Burton Ferry, across Milford Haven, which was the ordinary communication between Pembroke and Haverfordwest. He was also lessee, under the same gentleman, of another ferry from the same point, on the Pembroke side, to Nayland and back; there was no question as to the right of the plaintiff to both these ferries. He claimed also a much more extensive right, that of ferrying all persons backwards and forwards over Milford Haven, within no very narrow limits; but this right was negatived by the jury on the trial.

It appeared, however, that the defendant had, before the commencement of this suit, set up a boat to carry passengers from Nayland to the opposite side, and, amongst other places, to Hobbes's Point, more than half a mile from the Pembroke Ferry-house. At this place a hard or pier had been built, to improve the communication between England and Ireland, and a road made from thence to Pembroke, which communicated with the turnpike road from Pembroke Ferry to Pembroke, at a distance of more than half a mile from the ferry; and the way from Nayland to Pembroke, by Hobbes's Point, was shorter than by Pem

1 "I think that what is laid down in Saville is not law to the extent to which it is there stated. The owner of the ferry must, as incident to the ferry, have such right to use the land on both sides as to enable him to embark and disembark his passengers; but he need not for that purpose have any property in the soil. It is sufficient if he has a right to use the land for all the purposes of his ferry. This is a right to use the land of another for a particular purpose, and is an incorporeal hereditament." Per HOLROYD, J., in Peter v. Kendal, 6 B. & C. 703, 711 (1827).

2 The opinion only is given.

broke Ferry. There was no town or vill between Hobbes's Point or Pembroke Ferry, and the junction of the new with the old road; and, I rather believe, none between that point and Pembroke, although that circumstance was not inquired into on the trial.

On one occasion, a boy in the service of the defendant, and in his boat, received a passenger on board at Nayland, who, after the boat had been shoved off the shore, informed him he was going to Pembroke, and desired to be put on shore at Hobbes's Point; and this was done.

The jury having found for the defendant on the other questions in the cause, these points were reserved for the consideration of the court, -1st, whether the defendant was responsible for this act of his servant; and, 2dly, whether, if he was, the facts proved amounted to a disturbance of the plaintiff's right of ferry, the jury having negatived any fraud in fact on the part of the defendant or his servant.

A rule nisi having been granted for a new trial, the case was argued before my Brothers PARKE, BOLLAND, GURNEY, and myself.

Upon the first point there is no difficulty. The servant was acting at the time in the course of his master's service, and for his master's benefit; and his act was that of the defendant, although no express command or privity of his master was proved. Tuberville v. Stampe, 1 Ld. Raym. 265.

The second point is one of a more doubtful nature, and has called for much consideration. It is quite clear, that a ferry is a franchise which none can set up without a license from the Crown; and in the case of a ferry by prescription, a grant or license is presumed. As early as in the Year-Book, 22 Hen. 6, 146, it is thus laid down by Paston: "If I have of ancient time a ferry in a town, and another sets up a ferry upon the same river near to my ferry, so that the profits of my ferry are impaired, I shall have against him an action on the case; and Newton says: "The case of a ferry differs from that of a mill, for you are bound to sustain the ferry, to serve and repair it, in case of the common people, and it is inquirable before the sheriff in his tourn, and justices in Eyre." This proposition is quoted in 2 Roll. 140 G, pl. 4, Com. Dig. Piscarry, B., and Action on the Case for a Nuisance, and in most of the cases in which the rights of ferry have come in question.

In the case of Churchman v. Tunstall, Hardres, 162, in the Exchequer, in the time of the Commonwealth, 1659, the plaintiff, the farmer of a ferry at Brentford, as it would seem, under the Crown, filed a bill for an injunction to restrain the defendant, who had lands on both sides of the Thames, three quarters of a mile off, and who was in the habit of ferrying passengers across, from continuing to do so. The bill was dismissed without costs; but the reporter adds a query as to the propriety of the decision; and even if it was right, it is no authority against the maintenance of an action on the case. The decision, however, appears to have been wrong; for, upon another bill filed in 1663, after the Restoration, a decree was made by Lord Hale, on the 18th of

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