necessity of a ferry or bridge he is certainly apprised; and with a full knowledge of the claim for a practicable road, of the acts needed to make it such, and of all the incidents therewith connected, he makes a claim for damages for the full and perfect location of the highway; and nowhere does the Statute comtemplate a claim for partial damages. He knows the extent of injury; knows, too, that by Statute he stands secure of the right to keep any ferry on or adjacent to his lands, if he deem it of any sufficient value. It would be strange if, with all this knowledge, with these rights, he could afterwards say to the public that it had not compensated him for the privilege of using the ground at the edge of a stream in the road for the landing of those boats, which the competent authority deems best fitted for the convenience of the public. If his general claim for damages has been adjusted, or if he have failed to make such claim, we deem that he has received constitutional compensation for the laying out of the road, and all its incidents. He had, we affirm, no natural rights, except the right of landing upon the banks of the stream, and the right to a private ferry; certainly the claim for damages covers the former, and the latter is still his privilege, though a public ferry be established. The land under the water, as well as the land at the edge of the stream, is subject to the incumbrances of a highway, and their uses differ not; there is no line in a highway, on the different sides of which there are different rights or incumbrances. The franchise of a ferry rests with the State, and the right to locate a road is vested in the same authority, and both powers are jointly used in locating a highway, if necessary, and damages are claimed for the exercise of both, if claimed at all.

So Mills v.

A brief reference to authorities sustains this view. In Peters v. Kendall, 6 Barn. & Cress. 703 (1827), the English courts held that the owner of the ferry need not have the property in the soil on either side; it was sufficient that the landing-place was a public highway; it was a right incident to the ferry to use such landing-place for the purposes of a ferry. Virginia authorities go very far that way. Somerville v. Wimbish, 7 Grat. 205; Patrick v. Ruffner, 2 Rob. 209. Commissioners, 3 Scam. 53; and from the collation of authorities, carefully made, Chancellor Kent, in the third volume of his Commentaries, note to page 421, declares this the better doctrine, that "this is the most reasonable conclusion upon the right to the use of a public highway to which a ferry is connected." The cases cited by counsel for appellant go mainly to this point, that a highway being established, and the public and the land-owner having acquired rights and privileges incident thereto, such use and such rights cannot be taken by a private or public corporation for particular purposes, or be diverted to other and inconsistent uses, without compensation for such appropriation or diversion. To that doctrine we cheerfully subscribe; but those cases do not apply here. We deem the ferry a part of the road; without it, the road is useless, and the location has failed in its object. The landings are upon the highway and within its lines, and the dis

tinction is a very shadowy one, between stepping from the land upon a boat, and from thence upon the land, and stepping from land to land, especially when all valuable rights are saved in other ways by our laws, perhaps as a part of a compensation to the land-owner. The owner of the land cannot go upon that landing and build abutments, or lay a wharf. Surely no diversion of use has been made, no appropriation different from the first great purpose of having a safe and speedy line for public travel and convenience. While this view decides the case in question, there is another feature which belongs specially to this case.

If the right to land from a ferry boat on a highway upon appellant's land was his own, and not to be taken without compensation, certainly the public has notified him that an appropriation of that right was demanded, and by as strict a course of procedure as in laying out a highway, he was notified that, upon a certain time it would be appropriated, unless he appeared and received that which would be in every view a compensation, viz. The receiving of that franchise from the State which could only make the landing-place of any value to him; compensation was assessed and tendered then. The law declares that he shall be preferred. He has no right to have a public ferry in any way, without that franchise; the landing is to him of no value otherwise. If, then, conscious of that claim of appropriation to public use of his lands, he fail to appear and obtain, not only the value of landing from the stream, but also an exclusive ferry right, does he not waive any claim to compensation? Does he not declare that it is of no sufficient value to compensate him for the trouble of asking for his rights? Or, does he not consent that what might be of value to him, may be given to another? And no court would hold other than that he had consented to such use. In this case the full compliance with the law had been made, and appellant had suffered such a course when fully conscious of its effect. In either view we have taken, the judgment of the court below should be affirmed.1

STATE v. DAVIS.

SUPREME COURT OF NORTH CAROLINA. 1879.

[Reported 80 N. C. 351.]

INDICTMENT for an affray tried at November Term, 1878, of Wake Criminal Court, before Strong, J.

The opinion contains the facts. That portion of the charge of the court to which exception was taken is as follows (the defendant and one Lassiter being on trial under the indictment) : "Should the jury find

1 See accord. Clark v. White, 5 Bush, 353 (1869); contra, Cooper v. Smith, 9 S. & R. 26 (1822); and Prosser v. Wapello County, 18 Iowa, 327 (1865). Cf. Burrows v. Gallup, 32 Conn. 493.

that defendant Davis while in a public highway passing over lands of which Mrs. Laws was in possession, or while out of the highway but on such lands, used obscene, vulgar, and profane language, to the annoyance of men and women in the house of Mrs. Laws situated near by, and that defendant Lassiter was her son and lived in said house with his mother, and that he struck Davis for the purpose of suppressing said annoyance, and used no more force than was necessary for that purpose, you will find him not guilty." Verdict of Not guilty as to Lassiter, and Guilty as to Davis. Judgment, appeal by defendant. Attorney-General, for the State.

Mr. T. M. Argo, for the defendant.

ASHE, J. The defendant and one Evans were quarrelling near the dwelling-house of Mrs. Laws in a public road running over her land. The defendant, armed with a pistol which he had in his hand, was vaporing, cursing, and using very vulgar language in the hearing of the inmates of the house. Lassiter, who was the son of Mrs. Laws and lived with her, came out with an ordinary walking-stick in his hand and remonstrated with the defendant, who, still holding his pistol, cursed and denounced him, saying he was in the public road, and he would curse as much as he pleased. After the interchange of a few words, the lie was given by defendant, and Lassiter struck him with his stick; when the defendant attempted to use his pistol, but was prevented by those present.

He seems to have rested his defence upon the ground that he was in the public road, and had the right to do there as he pleased. In this he was mistaken. The public have only an easement in a highway; that is, the right of passing and repassing along it. The soil remains in the owner, and where one stops in the road and conducts himself as the defendant is charged to have done, he becomes a trespasser, and the owner has the right to abate the nuisance which he is creating. The principle of molliter manus does not apply to a case like this, where the trespasser, armed with a pistol, is acting in such belligerent defiance. See State v. Buckner, Phil. 558.

The defendant used language which was calculated and intended to bring on a fight, and a fight ensued. He is guilty. State v. Perry, 5 Jones, 9; State v. Robbins, 78 N. C. 431.

We find no error in the charge given by His Honor to the jury. Let this be certified, &c.

PER CURIAM.

1 See Adams v. Rivers, 11 Barb. 390.

No error.1

WILLIAMS v. NEW YORK CENTRAL RAILROAD COMPANY!

COURT OF APPEALS OF NEW YORK. 1857.

[Reported 16 N. Y. 97.]

SELDEN, J. This is a suit in equity, the object of which is to obtain a perpetual injunction, restraining the defendants from continuing to use and occupy with their railway a portion of a certain highway or street, in the village of Syracuse, known as Washington Street, and to recover damages for its past occupation. Washington Street was gratuitously dedicated to the use of the public by the plaintiff and others through whose land it was laid; and the Utica and Syracuse Railroad Company, to the rights and liabilities of which the defendants have succeeded, constructed their railway upon it without making any compensation to the plaintiff, and without his consent. At the time the track was laid the plaintiff was the owner of a large number of lots fronting upon the street, a portion of which he has since sold, with a reservation of his claim against the railroad company for damages, and a portion of which he still owns. The damages which have accrued, both upon the sold and unsold portions of the premises, are claimed in this suit.

The defendants, in justification of their occupation of the street, show that the charter of the Utica and Syracuse Railroad Company (Laws of 1836, 319, § 11) declares that their road might "intersect" and be built upon any highway, and that this right is confirmed by the General Railroad Act of 1850.

They also show the express consent of the municipal authorities of the village, as well as of the city of Syracuse, to such occupation. The principal question, therefore, and the only one which I deem it necessary to consider, is, whether the State and municipal authorities combined could confer upon the railroad company the right to construct their road upon this street, without obtaining the consent of the plaintiff or making him compensation.

If the railway encroaches in any degree upon the plaintiff's proprie tary rights, then it is clear that the constitutional inhibition, which forbids the taking of private property for public use "without just compensation," applies to the case.

It is conceded that, by the dedication, the public acquired no more than the ordinary easement or right to use the premises as a highway ; and that the plaintiff continues the owner in fee, in respect to the unsold

1 This and the four following cases have been placed here out of their chronological order, so as to bring the class of questions of which they treat together. 2 The opinion only is given.

lots, to the centre of the street, subject only to this easement; but it is contended that the taking and use of the street by the railroad company does not encroach upon the reserved rights of the plaintiff, because the use of a street for the purposes of a railroad is only "one of the modes of enjoying the public easement."

Before examining this position in the light of principle, it will be well, as the question is one of great importance, to ascertain how far it may be regarded as settled by authority. In doing this it is indispensable, to avoid confusion, to separate those cases which bear directly upon the question, from numerous cases which, although they may appear upon a cursory reading to have some bearing upon the subject, will be found upon closer examination to throw no light upon it.

In the first place, then, it should be observed that this case bears no analogy to that class of cases in which the main inquiry is, not as to any violation, either direct or consequential, of the corporeal rights of property of the plaintiff, but rather to those incidental injuries which unavoidably result from the construction of railways through the streets of populous towns and villages, such as noise, smoke, frightening of horses, obstruction to the free and convenient use of the street, &c. I will refer to two or three of the cases belonging to this class, which might be supposed, unless closely examined, to have something to do with the question.

The case of Drake v. The Hudson River Railroad Company, 7 Barb. 508, was a suit brought by a number of persons claiming to be owners of lots fronting on Hudson Street, in the city of New York, to restrain the defendants from laying down their rails in that street. Although it was alleged in the complaint that the plaintiffs were owners in fee of the soil to the centre of the street, and the point was made that the conversion of the street into a railroad track was a violation of their rights of property, yet, as the plaintiffs entirely failed to establish any title in themselves to the soil of the street, the question presented here did not and could not arise. Justice Jones, who delivered the leading opinion, says: "The plaintiff can, consequently, have or claim no right or title to the legal estate of the portions of Hudson and Canal Streets taken by the corporation of the city, by authority of law, for the purpose of laying out and forming or opening the same."

Justice Edwards also denied that the plaintiff had any title to the soil of the street. Indeed, no case is likely to arise in the city of New York which would be entitled to any weight in the decision of this question, for the reason that it is claimed, and apparently with much justice, that, as to a large portion of the streets in that city, the fee of the land, and not a mere easement, is vested in the corporation. Judge Hoffman, in his recent work on the corporate powers of the city, after arguing with much clearness and force in favor of the position, says: "In every street, then, opened under the provision of the Acts of 1807 and 1813, the fee in the soil is vested in the corporation. It is divested from the original owners." (Hoffman's Treatise, 289.)