Under the latter circumstances, it seems that the area within which a new market would become actionable would be diminished from a diameter of fourteen miles by the public need; and, on the same reasoning, the area for the monopoly of a ferry would depend on the need of the public for passage.

We now proceed to the cases. The dictum of Paston, in 11 H. 6, fo. 14, only affirms that case will lie for infringing the right of a ferryman, and does not touch the question of proximity. In Churchman v. Tunstal, Hardres, 162, the complaint, by English bill, was, that the defendant carried over the Thames, in Brentford, three quarters of a mile below the plaintiff's ferry for horses and passengers, and an injunction was prayed to stop it; the defendant contended that the restraint which the plaintiff would lay on others was uncertain, and at too great a distance; and the court decided for him, because it came too near to a monopoly, and restrained trade. The decision by Lord Hale between the same parties is said, in Huzzey v. Field, 2 C. M. & R. 432, to have been different; but neither the point of law, nor the facts on which Lord Hale acted, are stated. In Tripp v. Frank, 4 T. R. 666, the plaintiff's ferry was from Hull to Barton. The defendant carried from Hull to Barrow, two miles below Barton, on the Humber. The judgment is for the defendant. Lord Kenyon says: "If a person wishing to go from Hull to Barton had applied to the defendant, and he had carried them a little above or below the ferry, it would be a fraud on the plaintiff's right, and a cause of action. But here these persons were substantially and not colorably carried to a different place." And Ashhurst, J., adds, in effect, that it is unreasonable to require that a person crossing the Humber must be carried out of his way, on account of the plaintiff's ferry.

In Huzzey v. Field, 2 C. M. & R. 432, the plaintiff had a ferry from Nayland to Pembroke Point. The main highway from Haverford to Pembroke passed by Nayland, and thence over the water to Pembroke Point, and so to Pembroke. Afterwards traffic to Milford Haven increased, and Pater Dock was built, and a landing-place at Hobbes's Point, half a mile from Pembroke Point, was made, it being required for the accommodation of traffic in lines other than that from Haverford to Pembroke. The defendant took a passenger in his boat from Nayland Point, who, when afloat, ordered him to Hobbes's Point, saying he was going to Pembroke. The question was, whether these facts proved a disturbance of the ferry; and it was answered in the negative. The court describes a disturbance to be either by carrying from point to point, or by constructing a landing-place at a short distance from one terminus of the ferry, and carrying passengers thereto who were in reality passing along the line of way on which the ferry is situate. But, as it appeared in the case there were other places than Pembroke to which the passenger might be going from Hobbes's Point, without or before going to Pembroke, and if there was a convenience to him in landing at Hobbes's Point, which he could not have had by landing

at Pembroke Point, he would not evade the plaintiff's ferry by landing at Hobbes's Point.

In the last two cases, the ferry was backwards and forwards, and the question arose in respect of the terminus ad quem. The law would have been precisely the same, as far as the consideration of convenient accommodation operates, if the question arose respecting the terminus a quo, as it necessarily does in this case, where the ferry is only one way. But these general principles, and their specific application to Potter's Ferry, were considered in Matthews, app., Peache, resp., 5 Ellis & B. 546, and the judgment was decisively in point for the defendants. The information was for plying as waterman, without a license. The defence was, that the defendant was exempt as a ferryman ferrying in Potter's Ferry from Cubitt's Dock, which is 800 yards from Potter's Ferry Stairs, to Greenwich. The court decided that

the ferry is from the stairs, and not from the Isle of Dogs to Greenwich, the indefinite words of the conveyance being defined by the exercise of the right; and that therefore the exemption for ferries did not extend to Cubitt's Dock, distant 800 yards. A fortiori it does not extend to Cubitt's Pier, which is 1280 yards distant from the ferry.

Therefore, upon principle and authority, it appears that the plaintiffs have neither the privileges nor the burdens of a ferry from Cubitt's Pier, and that all the Queen's subjects being at Cubitt's Pier, whether from Poplar or elsewhere, have a right to use the highway of the Thames therefrom either to Greenwich or elsewhere at their free will and pleasure, either by wherries or steamer.

It follows that no right of the plaintiffs is shown to have been infringed by the defendants, and that the defendants are entitled to our judgment.

Judgment for the defendants.

Pigott, Serjt. (with whom was Powell), for the plaintiffs.
Lush, Q. C. (with whom were Raymond and Humphrey), contra.1

GATES v. M'DANIEL.

SUPREME COURT OF ALABAMA. 1829.

[Reported 2 Stew. 211.]

THIS was a suit in equity, tried on bill and answer in the Circuit Court of Covington County, at October Term, 1827.

Samuel Gates had filed his bill in March, 1827, charging, that before the sale of the public lands at that place by the United States, Thomas

1 Affirmed in Cam. Scacc., 13 C. B. N. S. 864.

M'Daniel had established a ferry on the Conecuh River, below the falls, in Covington County. That when the land was sold by the government, it was purchased by several persons jointly, among whom were the complainant and defendants. That after the purchase, the owners applied to the County Court of Covington County, and obtained an order for a public ferry, at the same place at which the defendant, M'Daniel, had before kept his ferry. That a part of the land purchased was laid off in lots, for the purpose of making a town; that the whole of the land thus distributed into lots was divided by ballot among the owners; and that in the division, the complainant drew the lots attached to the ferry; that before the drawing, it had been agreed, that no ferry should be kept on any other part of the land. He alleged, that after the division, he had obtained from the County Court an order for a public ferry at the same place, in his own name. He further charged, that notwithstanding this agreement, the defendants had erected a bridge across the river on a part of the land drawn by them, very near to the ferry, on which all persons were permitted to cross, on foot, on horseback, and in carriages, free of charge, by which the profits of the ferry were entirely destroyed; although he the complainant had complied with the law in keeping a good boat and ferryman, and kept the banks in good order, &c. He also alleged, that before building the bridge, M'Daniel had made an application to the County Court, for authority to establish another ferry on said land, which had been refused. According to the prayer of the bill, an injunction had been granted, restraining the defendants from permitting the bridge to be used for any other purpose than the convenience of their own families.

The defendants, by their answer, admitted the allegations of the bill, except the agreement that no ferry should be established other than the one which had been previously authorized, which they denied. They also denied that the banks leading to the complainant's ferry had been put in good order, and insisted that wagons had been compelled to unload before they could get up the banks; and that the complainant. himself had, in some instances, used the bridge.

On the hearing in the Circuit Court, the injunction was dissolved, and bill dismissed with costs, on the ground that the Statute prohibiting the establishment of ferries within two miles of a ferry already established, did not embrace bridges; and also that it contained an exception as to ferries at or near a town.

The complainant appealed from this decree, and insisted that it was

erroneous.

Shortridge, for the appellant.

Vandegraaff and Parsons, for the defendants.

BY JUDGE TAYLOR. The Statute of 1820, section 17, provides "that no public ferry shall be established within less than two miles by water, of any ferry already established, unless on any river at or within two miles of any town." And by the 20th section of that Act, it is declared "that if any person or persons shall establish a public ferry or a public

road, toll-bridge, or causeway, contrary to the provisions of this Act, he or they shall forfeit and pay five hundred dollars," &c. The meaning of this last section clearly is, if a toll-bridge, &c., should be established without an order of court, then the forfeiture shall be incurred. But as this is not a toll-bridge, it does not come within the words of the Statute, which is penal, and must be strictly construed.

What is the reason that persons are prohibited from establishing a public ferry within two miles of another? Clearly because the owner of the first has entered into onerous engagements when he obtained the order to establish his ferry. He has become bound to keep good boats, constant attendance, &c. This requires that he should receive compensation, and it is important to the community that he should observé faithfully the engagements he has entered into. Unless be has some such protection, his ferry will become profitless, of course will be neglected, and travellers and others meet with great delays. But will the object of the General Assembly in affording this protection be defeated by the erection of a bridge within the prohibited distance? Certainly, much more effectually than by establishing a ferry. It is said though that in the record, there is some showing that this place came within the exception, as there was a town where this bridge is built. I am far from being satisfied that there was a town within the meaning of the Act; but it is a sufficient reply to this objection, that this bridge was not established by order of the County Court.

Apart from all statutory provisions, except those which relate to the establishment of the ferry, I am decidedly of opinion that the defendants had no right to build a public bridge within the immediate vicinity of the ferry, calculated to destroy the profits of the ferry. The complainant had regularly made his application to the County Court, enStered into bond as the law directs, and was liable to be sued on that bond if he failed to comply with its conditions; certainly then he must receive the protection which he had a right to expect when he gave this bond, and without which it will not be in his power to fulfil its con(ditions. In a case reported in 1 Johnson's Chancery Reports, 611, it is determined that "an injunction will be granted to secure to a party the enjoyment of a privilege conferred by Statute, of which he is in the actual possession, and when his legal title is not put in doubt. As when a turnpike company, incorporated with the exclusive privilege of erecting toll-gates and receiving toll, had duly opened, and established the road with gates, &c., and certain persons, with a view to avoid the payment of toll, opened a by-road near their turnpike, and kept it open, at their own expense, for the use of the public, by which travellers were enabled to avoid passing through the gates, and paying toll to the plaintiff; the court granted a perpetual injunction to prevent the defendants. from using or allowing others to use such road, and ordered the same to be shut up." This case is so precisely in point, that it is needless to comment upon it.

The decree of the court below must be reversed; and this court pro

ceeding to render such decree as should have been rendered below, it is ordered, adjudged, and decreed, that the injunction be reinstated and perpetuated, and that the defendants pay the costs of the suit. JUDGE CRENSHAW, not sitting.1

1 Accordingly in Smith v. Harkins, 3 Ired. Eq. 613 (1845), it was held that a free bridge was a disturbance to a ferry. So a free ferry is a disturbance to another ferry. Long v. Beard, 3 Murphy (N. C.) 57 (1819); Aikin v. Western R. R. Co., 20 N. Y. 370 (1859); Harrell v. Ellsworth, 15 Ala. 576 (1850). So a free ferry is a disturbance to a bridge. Norris v. Farmers' Co., 6 Cal. 590 (1856).

But cf. Hopkins v. Gt. North. R. Co., 2 Q. B. Div. 224.