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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, adinitted 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
Shortridge, for the appellant.
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 obserte faithfully the engagements he has entered into. Unless be bas some such protection, his ferry will become profitless, of course will be neg. lected, 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 thongh 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 bad regularly made his application to the County Court, entered 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 conditions. In a case reported in 1 Johnson's Chancery Reports, 611, it is determined that 66 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 palment 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 piaintiff; 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 slıut 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 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. Lmg 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.
NATURE, KINDS, AND REMEDIES.
Scriven on Copyholds,
Lit. & 213. Three manner of rents there be, that is to say, rent service, rent charge, and rent seck. Rent service is where the tenant holdeth his land of his lord by fealty and certain rent, or by homage, fealty and certain rent, or by other services and certain rent
. And if rent service at any day, that it ought to be paid, be behind, the lord may distrain for that of common right.
1 “Before the passing of the Statute of Quia Emptores, 18 Ed. 1, St. 1, which pro. hibited the subinfeudation of land, rents might be and were reserved upon a feoffment in fee simple. Such rent was rent service incident to the seigniory, and was distrain
; able for of common right. Lit. 216. Many rents so created are still in existence, and are variously termed chief rents, rents of assize, quit rents, and fee farm rents. Chief rents, in the original, as distinguished from the modern 'sense of the word, are such rents as are payable by the freeholders of a manor to the lord under whom they hold. 1 Steph. Com. 675. Rents of assize are similar rents payable by a freeholder or copy holder of a manor, the name being derived from the original reservation having been assized, i. C., reduced to a certainty by the lord of the manor. 6th ed., 208. The term quit rent is often applied
to both chief rents and rents of assize
, but, strictly speaking, is applicable only to a rent reserved in lieu of all services, because then the tenant is quit from other services. Scriven on Copyholds, 6th ed., 208. All these are rents service, and must have been paid immemorially (Scriven on Copy holds, 6th ed., 208), or at least since before the passing of the Statute Quin Emptores,
“ Fee farm rents, though very similar, differ somewhat from those last mentioned. They were rents reserved upon feoffments of land in fee rendering yearly the true value, or more or less, for which tenements neither homage, wardship, marriage, nor relief could be demanded without special stipulation. Britton, book ii. ch. ii. Feoffments of this kind appear thus to have been more analogous to a lease at rack rent than to an ordinary feudal grant, in which the services were importance than the rent. With the growth of the commercial and decay of the feudal spirit, this form was no doubt increasingly adopted. We read in Hallam's Middle Ages, ch. viii. part iii., that one of the earliest and most important changes in the condition of the burgesses of towns was the conversion of their individual tributes into a perpetual rent from the whole borough. The town was then said to be afirmed or let in fee farm to the burgesses and their successors forever.
A fee farm rent is often stated as a rent in fee issuing out of an estate in fee of at least one fourth of the value of the land at the time of its reservation. 2 Blaekstone, 43; note to Bradbury v. Wright, 1 Dong. 626; Spelm. Gloss. 221, col. 1. The name, however, is founded on the perpetuity of the rent, not on the quantum. Harg., note to Co. Lit. 143 b; Mad. Firın. Burg. 3. Mr. Hargrave states that the sometimes confining the term of fee farm to rents of a certain value probably
regarded as of more
Co. Lit. 142 a. And the rent may as well be in delivery of hens, capons, roses, spurs, bows, shafts, horses, hawks, pepper, comin, wheat, or other profit that lietb in render, office, attendance, and such like, as in payment of money. But a man upon his feoffment or conveyance cannot reserve to him parcel of the annual profits themselves, as to reserve the vesture or herbage of the land or the like, for that should be repugnant to the grant: non debet enim esse reservatio de proficuis ipsis, quia ea conceduntur, sed de redditu novo extra proficua."
Lit. § 214. And if a man will give lands or tenements to another in the tail, yielding to him certain rent by the year, le of common right may distrain for the rent behind, though that such gift was made without deed, because that such rent is rent service. In the same manner it is, if a lease be made to a man for life, or the life of another, rendering to the lessor certain rent, or for term of years rendering rent.
LIT. $ 215. But in such case, where a man upon such a gift or lease will reserve to him a rent service, it behooveth, that the reversion of the lands and tenements be in the donor or lessor. For if a man will make a feoffment in fee, or will give lands in tail, the remainder over in fee simple, without deed, reserving to him a certain rent, this reservation is void, for that no reversion remains in the donor, and such tenant holds his land immediately of the lord, of whom his donor held, &c.
Lit. $ 216. And this is by force of the Statute of Quia Emptores terrarum
For before that Statute, if a man had made a feoffment in fee simple, by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent service, and for this he might have distrained of common right; and if there were no reservation of any rent, nor of any service, yet the feoffee held of the feoffor by the same service, as the feoffor did hold over of his lord next paramount.
Lit. $ 217. But if a man, by deed indented, at this day maketh such
the Statute of Gloucester, which gave the cessavit only where the rent amounted to one fourth of the value of the land, and partly from its being most usual on grants in fee farm not to reserve less than a third or fourth of such value. It is stated in Britton, book iii. ch. ii., that if the feoffees ceased to pay the rent for two years together, an action thereby accrued to the feoffors or their heirs to demand the tenements in demesne.
" It would appear to be the better opinion that fee farm rents, properly so called, are rents service, and cannot therefore be created since the passing of the Statute Quia Emptores. Harg., note to Co. Lit. 143 b. The term, however, has been freely used, and in very modern Acts of Parliament; e. g., Conveyancing Act, 1881, § 14 (3); Settled Land Act, 1882, $$ 10, 20, with reference to the rent charges which are continually being created as the consideration for conveyances of freehold land.”
Harrison, Chief Rents, 2-5. As to which of the United States have preserved the law of distress, see 2 Tayl. Landl. & Ten. (8th ed.) 88 558, 559.
“ A reservation of a part of the thing demised cannot properly operate as a render, and it may be admitted that it operates as an exception." -- Per LORD ELLEN BOROUGH, C. J., in The King v. Pomfret
, 5 M. & S. 139, 143 (1816). Cf. The King v. St. Austell, 5 B. & Ald. 693. See also Doe d. Edney v. Benham, 7 Q. B. 976.