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CHAPTER VI.

FRANCHISES.

2 Bl. Com. 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."

3 Bl. Com. 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

bound to keep it always in repair and readiness, for the ease of all e 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

See Charles River Bridge v. Warren Bridge, 11 Pet. 420 (1837). See on Forests, &c., Wnis. Commons, Lect. xvi. Magna Carta, c. 16 (1225) provides that “no banks shall be defended from hence. forth 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.

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.

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.

HUZZEY V. FIELD.

EXCHEQUER. 1835.

(Reported 2 C. M. & R. 432.). LORD ABINGER, C. B. 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 bard 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 HOLROYN, 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 terry by prescription, a grant or license is presumed. As early as in me Year-Book, 22 Hen. 6, 146, it is thus laid down by Paston: “ If I wave 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 Excheqner, 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 inaintenance of an action on the case. The decision, however, appears to have been wrong; for, upon another bill filed in 1663, alter the Restoration, a decree was made by Lord Hale, on the 18th of

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June, 14 Car. 2, in favor of the same plaintiff, that the new ferry should be put down.

In Blissett v. Hart, Willes, 508, the plaintiff recovered in an action on the case, against the defendant, for setting up another ferry orer the same river, near the plaintiff's ferry, and ferrying over persons and horses over the same river, near the plaintiff's ferry, by which she was obliged to let it for less rent than before, and had been deprived of great part of the profit of it. On motion in arrest of judgment, the court held the declaration to be good, and they said, that -- a ferry is a franchise that no one can erect without a license from the Crown; and when one is erected, another cannot be erected without an ad quod damnum. If a second is erected without a license, the Crown has a remedy by quo warranto, and the former grantee has a remedy by action. The franchise is the ground of the action." Willes, 512 n.

So far the authorities appear to be clear, that, if a new ferry be set up without the king's license, to the prejudice of an old one, an action will lie; and there is no case which has the appearance of being to the contrary, except that of Tripp v. Frank, hereafter mentioned. These old authorities proceed upon the ground, first, that the grant of the franchise is good in law, being for a sufficient consideration to the subject, who, as he receives a benefit, may have, by the grant of the Crown, a corresponding obligation imposed upon him in return for the benefit received ; and secondly, that, if another, without legal authority, interrupts the grantee in the exercise of his franchise, by withdrawing the profit of passengers, which he would otherwise have had, and which he has, in a manner, purchased from the public at the price of bis corresponding liability, the disturber is subject to an action for the injury; and the case is, in this respect, analogous to the grant of a fair or market, which is also a privilege of the nature of a monopoly:

A. public ferry, then, is a public highway, of a special description, and its termini must be in places where the public have rights, as, towns or vills, or highways leading to towns or vills. The right of the grantee is, in the one case, an exclusive right of carrying from town to town, in the other, of carrying from one point to the other, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side. Any new ferry, therefore, which has the effect of taking away such passengers, must be injurious.

For instance, if any one should construct a new landing-place at a short distance from one terminus of the ferry, and make a practice of carrying passengers over from the other terminus, and there landing them at that place, from which they pass to the same public highway upon which the ferry is established, before it reaches any town or ville and by which the passengers go immediately to the first, and all the vills and towns to which that highway leads; there could not be any doubt that such an act would be an infringement of the right of ferti: whether the person so acting intended to defraud the grantee of the ferry or not.

If such new ferry be nearer, or the boats used more commodious, or the fare less, it is obvious that all the custom must inevitably be withdrawn from the old ferry; and thus the grantee would be deprived of all benefit of the franchise, whilst he continued liable to all the burden imposed upon him.

It does not follow from this doctrine, that, if there be a river passing by several towns or places, the existence of a franchise of a ferry over it, from a certain point on one side to a point on the other, precludes the King's subjects from the use of the river, as a public highway from or to all the towns or places on its banks, and obliges them, upon all occasions, to their own inconvenience, to pass from one terminus of the ferry to the other. The case of Tripp v. Frank, 4 T. R. 666, decided otherwise ; and it is not intended to question that decision. It was there held that the plaintiff, who had a right of ferry from Hull to the town of Barton, had no right of action against a person who carried passengers from Hull to Barrow, a place on the banks of the river, at some distance from Barton. But, suppose he had known that the passengers were going by that route to Barton, and that their sole object was to go there; or suppose that Barton, instead of being within a few hundred yards from the Humber, was a mile distant, and was the first town with which either ferry communicated, it would not follow, from that decision, that in such a case passengers might be landed at Barrow, for the sole purpose of going to Barton.

We have thought it right, in consequence of the course taken by the counsel in argument, to enter thus far into the general question, and to lay down these principles, that it may not be supposed that the decision to which we find ourselves obliged to come, can in any manner affect the plaintiff's right to the exclusive privilege of ferrying passengers who leave Nayland with no other object than that of going to Pembroke.

But, fully admitting his right, we are of opinion, after much deliberation, and, I may add, not without some hesitation, that there is no sufficient ground for making the rule absolute.

It is to be observed, that, between Hobbes's Point and the junction of the two roads that lead from that place and from Pembroke Ferry respectively to the town of Pembroke, there are intermediate points, to which the passenger Llewelyn might be going ; though Pembroke was his ultimate object, it might not be his only object; and, if he had any particular view of convenience in making Hobbes's Point the place of Dis landing, which could not have been accomplished as well by landing it Pembroke Ferry, then, according to the principles laid down in the case of Tripp v. Frank, there would have been no evasion of the plaintiff's ferry. It is true that the intentions of Llewelyn are left very uncertain upon the evidence; and it does not appear from the report, that the

ther side thought proper to elicit them by any inquiry: And if this had been the real question which the parties intended to try, the Court might have been disposed to direct a new trial. But one

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