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cannot fail to observe that the main questions of fact in difference were fully tried and disposed of by the jury, and that the point stated upon Llewelyn's evidence was laid hold of for no other purpose than that of recovering a verdict for the plaintiff at all events, after all the matters really in difference had been decided against him. The court, therefore, is bound to look with strictness to the evidence, and not to allow the plaintiff any advantage from an uncertainty that he ought to have removed. It was incumbent on him to offer satisfactory proof that Llewelyn had no other object than to evade his ferry, and that the de. fendants were aware, and must have understood, that he had no other object. Now, the communication made by Llewelyn to the defendant's servant, after the boat had commenced her passage, is not inconsistent with his having some legitimate object in going to Hobbes's Point, besides that of going to Pembroke. The uncertainty, therefore, in which this point has been left by the evidence, makes it impossible to say that the facts proved amounted to a disturbance of the plaintiff's ferry; therefore the rule cannot be made absolute, to enter a verdict for the plaintiff. And we think that the plaintiff, in a case of this sort, is not entitled to a new trial, that he may amend his evidence upon an incidental point, upon which he left it too doubtful to be properly submitted to the jury. The rule, therefore, must be discharged.
Rule discharged. John Evans, for the defendant. Sir J. Campbell, Sir W. Oven, Chilton, and E. V. Williams, contra.
NEWTON v. CUBITT.
(Reported 12 C. B. N. S. 32.] WILLES, J., delivered the judgment of the court:
In the first count of the declaration the plaintiffs complain that the defendants had carried passengers in the line of their ferry; in the second, that they had so done near that of the said ferry, for the purpose of evading it.
The defendants carried to Greenwich passengers from Cubitt's Pier, which is on the eastern side of the Isle of Dogs, distant 1280 yards from Potter's Ferry Stairs, on the south side of that isle. The area of the isle is about one square mile. It is bounded by the Thames on three sides out of four. It was an uninhabited marsh down to 1800, with one roadway from Poplar on the north, to Potter's Ferry Stairs on the south; and at that time the passengers going along that road comprised all the passengers from the Isle of Dogs. Since 1800 it has become and now is populous, and covered with manufacturing and commercial establish
1 The opinion only is given.
ments. Cubitt's Pier was made for the accommodation of Cubitt Town, built on the bank of the Thames at some distance from the roadway before mentioned, and only connected therewith by ways which the owner of the land has chosen to dedicate to the public.
Upon these facts, the questions are, — first, did the defendants carry within the line of the plaintiffs' ferry; and, if not, secondly, did they carry near to it, for the purpose of evading it?
In order to answer the first question, the extent of the plaintiffs' ferry must be ascertained. The plaintiff's claim the exclusive right of carrying all who pass from any part of the isle to Greenwich. In support of their claim they rely on a deed of 1676, and on usage. A part of the description of the ferry in the deed of 1676, taken by itself, tends to support this claim : “All that ferry extending itself from a place or marsh called the Isle of Dogs, over the Thames, into the town of Greenwich.” But, although these words may mean that every person passing from the Isle of Dogs to Greenwich must go by this ferry, there are other parts of the description which refer to usage; so that the extent must be ascertained thereby. It is a ferry commonly called and known as “ Potter's Ferry.” Usage must prove the application of this description. The concluding words also, viz., “in as ample a manner as the same hath beretofore been used, occupied, or enjoyed, make the limits depend on usage. Furthermore, the nature of the franchise seems to be repugnant to the plaintiffs claim of a ferry from every part of the isle indiscriminately:
A ferry exists in respect of persons using a right of way, where the line of way is across water. There must be a line of way on Tanel, coming to a landing place on the water's edge (as in this case, to l'otter s Ferry Stairs), or, where the ferry is from or to a vill, from or to one or more landing-places in the vill. The franchise is established to secure convenient passage; and the exclusive right is given because in an unpopulous place there might not be profit sufficient to maintain the boat, if there was no monopoly. The ferry is unconnected with the occupation of land, and exists only in respect of persons using the right of way. The questions, whence they come, and whither they 8". are irrelevant to the exercise of that right; and the ferryman has no inchoate right in respect of any of them, unless they come to his passage.
Such being the nature of a ferry, the notion that a large area of land should be subjected to the servitude that the owners and occupiers thereof should be prohibited from using the highway of the Thames as they may choose, and should be under an obligation to get to the high
hrom Potter's Ferry Stairs, and cross to Greenwich only anomalous; and, if Cubitt Town had been built without
to the road to Potter's Ferry, the performance of the supposed obligation would necessitate a trespass.
de nature of a ferry are few; and we cite only Paine th. 191. There, the court decided that case did not lie for an obstruction of a highway, without special damage; that a passage over the water is of the same nature as a highway for all people; and that the plaintiff, who claimed as an inhabitant of Littleport, had not the passage as such inbabitant, but as a subject.
If the line of the plaintiffs ferry be taken to be from Potter's Ferry Stairs only, and not from the whole isle, the defendants bave not carried in that line, and the first count fails.
The second count, charging that the defendants carried near the line of ferry, for the purpose of evading it, raises another question. The owner of the ferry has a cause of action for carrying in the line of the ferry, whether it be done directly or indirectly. He has a right to the transport of the passengers using the way; and, if the alleged wrong. doer makes a landing-place near to the ferry landing-place, so as to be in substance the same, making no material difference to travellers, such a wrongdoer would be guilty of the wrong complained of in the second count: he would indirectly carry in the line of the plaintiffs’ ferry.
Then, have the defendants done this wrong? We think not. Cubitt Town is at such a distance from Potter's Ferry as is substantially important for those who have to pass therefrom to Greenwich; and it is found that the defendants had not the purpose of evading the plaintiffs' ferry, or of diverting traffic therefrom.
The principle by which to decide whether the proximity of a new passage across the water to an ancient ferry is actionable, has not been clearly laid down. It seems reasonable to infer, that, if the franchise of a ferry is established for facility of passage, and if the monopoly is given to secure convenient accommodation, a change of circumstances creating new highways on land would carry with it a right to continue the line of those wav's across a water highway; and it is obvious that the single landing-place which sufficed for an uninhabited marsh, would be utterly inadequate for several towns thronged with industrial mechanics. If one hundred of such laborers pass now to Greenwich where one traveller passed in 1800, it seems oppressive to fix on such a large number of laborers the perpetually repeated loss of three quarters of a mile of walking, for the sake of the small fraction of the toll which is the profit on each passenger, and unreasonable so to increase that profit. If the public convenience requires a new passage at such a distance from the old ferry as makes it to be a real convenience to the public, the proximity seems to us not actionable.
The authorities do not define, either in respect of ferries or markets, or the like, what proximity is actionable. Fleta, lib. 4, c. 28, § 10, describes the proximity of a new market which is actionable to be seven miles, on the calculation of twenty miles a day for each person's travelling; and he therefore allows seven miles out and seven back, and time for marketing besides. Such a limit, on such a reason, might be suited to the simple wants of a rude life, where inhabitants are rew, but is unfitted for large towns, where daily wants are greatly multiplied.
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 riglit of a ferry'man, 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 Iluzzey 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 Navland, 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 ior the accommodation of traffic in lines other than that from Haverford to Pembroke. The defendant took a passenger in his boat from
and Point, who, when afloat, ordered him to Ilobbes's Point, saying he was going to Pembroke. The question was, whether these facts
oved 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 ferrr, and carrying passengers thereto WI
mg along the line of way on which the ferry is situate. but, as it appeared in the case there were other places than Pembroke
passenger might be going from Hobbes's Point, without or before going to Pembroke, and if there was a convenience to him
ung 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 Mattheus, 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 ferrs. man 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.?
GATES v. M.DANIEL.
(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.