The Court were to be at liberty to draw any inferences of fact not inconsistent with the finding of the jury.

Pigott, Serjt. (with whom was Powell), for the plaintiffs.-The only difference between the present case and the cases of Giles v. Groves, Blacketer v. Gillett, and Doust v. Matthews, is, that here the passage is effected from a different point. But it is submitted that the plaintiffs are entitled to the judgment of the Court for the interference with their right of ferry, whether from Cubitt Town, or from any other part of the Isle of Dogs,-the improvements which have been effected in the neighbourhood cannot afford any excuse for an encroachment on their franchise. This Court distinctly held in Blacketer v. Gillett that a count alleging that the plaintiffs were entitled to a ferry, and that the defendant conveyed passengers and goods across the river near to the plaintiffs' ferry, and that by reason thereof the plaintiffs lost profits and were disturbed in the possession of their ferry, disclosed a good cause of action. It is seldom that a ferry is claimed from a given point to a given point. In Blissett v. Hart, Willes 508, Bull. N. P. 76, according to the note of the judgment by Abney, J., the Court say: "A ferry is publici juris. It 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 a quo [*44 warranto, and the former grantee has a remedy by action." In Pim v. Curell, 6 M. & W. 234,† a declaration in case for the infringement of a ferry described the ferry as being across the river Mersey "from the township, parish, chapelry, or place of Birkenhead, in the county of Chester, to the parish, township, or place of Liverpool, in the county of Lancaster :" and it was held,-first, that the plaintiff might recover under this declaration, although he proved a ferry both ways, as well from Liverpool to Birkenhead as from Birkenhead to Liverpool, secondly, that this description did not import a ferry from the whole township, &c., of Birkenhead to the whole parish, &c., of Liverpool; but that the plaintiff might recover on proof of a ferry from any point within Birkenhead to Liverpool. In Huzzey v. Field, 2 C. M. & R. 432,† it was held that, where there is an ancient ferry from A. to B., which leads to a public highway, and another constructs a landing-place at C., a short distance from B., and carries passengers over from A. to C., from whence they pass to the same highway upon which the ancient ferry is established, before it reaches any town or village, it is an injury to the ancient ferry, for which an action will lie. Lord Abinger, in delivering the judgment of the Court, says: "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 ferry by prescription, a grant or license is presumed. As early as in the Year Book, 22 H. 6, fo. 14 b, it is thus laid down by Paston: 'If I have of ancient time a ferry in the 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 *ease of the common people, and it is inquirable before the sheriff in his C. B. N. S., VOL. XII.-4

[*45

tourn, and justices in eire.' This proposition is quoted in 2 Rolle 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. Tunstal, Hardres 162, in the Exchequer, 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 maintenance of an action on the case. The decision, however, appears to have been wrong; for, upon another bill filled in 1663, after the Restoration, a decree was made by Lord Hale on the 18th of June, 14 Car. 2, in favour 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 over 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.(a) If a second is erected *without a license, the Crown has a *46] remedy by quo warranto, and the former grantee has a remedy by action. The franchise is the ground of the action.' 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, 4 T. R. 666. 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 profits of passengers, which he would otherwise have had, and which he has in a manner purchased from the public at the price of his 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 in 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,

(a) For the cases in which the writ of ad quod damnum lay, see Fitzherbert's Natura Brevium 221-26.

[*47

which has the effect of taking away such passengers must be injurious. For instance, if any one should construct a new landingplace 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 vill, 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 ferry, whether the person so acting intended to defraud the grantee of the ferry or not." That judgment almost exhausts the subject, and precisely applies to the facts of this case. In Yard v. Ford, 2 Wms. Saund. 171 e, it was held, that, if a new market be erected without patent in a town near to an ancient market, it may be a nuisance, though holden on different days; and therefore, in an action on the case for erecting such new market, to the nuisance of an ancient market, if the jury find for the plaintiff, the Court will not doubt of the nuisance, though it appears that they are holden on different days. There clearly is nothing illegal in the plaintiff's claim of franchise. [ERLE, C. J.-Suppose a new town built within a short distance of one of the termini of an ancient ferry, to which the inhabitants could not get without committing a trespass, are they precluded from hiring boats to carry them across?] If the plaintiffs permitted that for twenty years without interruption, they would lose their franchise: Holcroft v. Heel, 1 Bos. & P. 400. [ERLE, C. J.-The case of a market and that of a ferry are not quite the same, though the mode of creation and encroachment may be the same.] The real question is, whether the plaintiff's right is to be destroyed or diminished because the place to which the ferry leads has become by progress of time and improvements more populous. In Kent's Commentaries, Vol. III., p. 617 (10th edit.), treating of government grants, it is said: "If the creation of the franchise be not declared to be exclusive, yet it is *necessarily implied in the grant, as in the [*48 case of the grant of a ferry, bridge, or turnpike, or railroad, that the government will not either directly or indirectly interfere with it, so as to destroy or materially impair its value. Every such interference, whether it be by the creation of a rival franchise or otherwise, would be in violation or in fraud of the grant. All grants or franchises ought to be so construed as to give them due effect, by excluding all contiguous competition which would be injurious and operate fraudulently upon the grant. The common law contained principles applicable to this subject, dictated by sound judgment and enlightened morality. It declared all such invasions of franchises to be nuisances, and the party aggrieved had his remedy at law by an action on the case for the disturbance, and in modern practice he usually resorts to Chancery to stay the injurious interference by injunction." And, after referring to the authorities, the learned Commentator adds in the note, "It has been usual in the grant of a franchise to exclude in express terms all interference within specified distances. This practice has become highly expedient, considering the doctrine established in the cases referred to in a subsequent part of this note.(a) By a

(a) Referring to Dyer v. Tuscaloosa Bridge Company, 2 Porter's Alabama Rep. 296, Jones v.

general Act in Illinois (Revised Laws of Illinois, 1833), a ferry or tollbridge created by statute excludes all other establishments of the kind within three miles of the same. So, the Act of Georgia of 21st of December, 1835, creating the Chattahoochee Railroad Company, excludes for twenty-five years all other railroads running parallel thereto within twenty miles. This is in *affirmance of the *49] common-law rule, and it is the wisest course, for, it prevents all uncertainty and dispute as to what are reasonable distances in the given case, and what would amount to an unlawful interference."(a) Lush, Q. C. (with whom were Raymond and Humphrey), contrà.— The questions to be considered are,-first, what is the extent of the plaintiff's right under the grant,-secondly, whether that which has been done by the defendants constitutes an infringement of that right.

1. The plaintiffs claim the right of ferryage from every part of the Isle of Dogs to the opposite side of the Thames from Deptford Creek to Charlton. That is obviously too large a claim. The Isle of Dogs was formerly a marsh with one road across it from the landing-place called Potter's Ferry Stairs to Poplar. According to the evidence of user, the ferry was from the landing-place at this road to Greenwich. That must have been the full extent of the grant; for, it was not competent to the Crown to grant a larger franchise. The definition of a ferry, as given by Lord Abinger in Huzzey v. Field, 2 C. M. & R. 432, 442,† is this," A public ferry 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." Adopting that as the correct definition,-the grant here could only give the grantees a *50] right to carry persons going to Greenwich from the *road on the opposite side leading to Poplar. A ferry can only exist as connected with a vill or a highway. A grant of a ferry to or from a place where there is neither vill nor highway would be void and inoperative. It appears from the statements in the case that there is no public right of way from the Folly House to Potter's Ferry; and yet it is contended that all persons wishing to cross from any part of the Isle of Dogs to Greenwich must by some means find their way to the plaintiffs' landing-place. Is the grant to be extended because a new neighbourhood has sprung up? [KEATING, J.-You would not, I presume, exclude the plaintiffs from their right to carry all persons coming from Poplar, because Poplar had become considerably extended.] It would still be the vill of Poplar. But it is submitted that the Crown cannot so limit the rights of future generations as to create a monopoly so extensive as is here claimed.

2. Assuming that the Crown had the power to make a grant as claimed here, what has it in fact granted? In the absence of the grant, that is only to be collected from the evidence of user. [BYLES, J.-Coupled with the indenture of 1676 referred to in the special case.]

Johnson, 2 Ala. R., N. S. 746, Charles River Bridge v. Warren Bridge, 11 Peters 420, and Tuckahoe Canal Company v. Tuckahoe Railroad Company, 11 Leigh, 42.

(a) And see Peters v. Kendal, 6 B. & C. 703 (E. C. L. R. vol. 13).

And that user extended only between Greenwich and the old road to Poplar commencing at Potter's Ferry Stairs. The right is limited to the transit between these two places. This being the only road existing at the time of the grant and at the date of the deed of 1676, there was no need of specifying more particularly the termini of the ferry. And the user carries it no further: the alleged right was always exercised to the old highway, and there only. In Giles r. Groves, 12 Q. B. 721 (E. C. L. R. vol. 64), and Blacketer v. Gillett, 9 C. B. 26 (E. C. L. R. vol. 67), the claim was not made, as here, from the whole of the Isle of Dogs, but "to and from a certain place in the Isle of Dogs." And in Doust v. Matthews, *the plaintiffs consented to abandon their verdict on the general [*51 right alleged, and took it upon the more limited right. In Matthews, app., Peache, resp., 5 Ellis & B. 546 (E. C. L. R. vol. 85), where the Court of Queen's Bench sustained a conviction of Matthews under the Waterman's Act, 7 & 8 G. 4, c. lxxv., for working boats within the limits of the Act without a license from the Waterman's Company, although he claimed an exemption under the 99th section of the Act (which saves the rights and privileges of the owners of any ferries), in respect of the ferry now in question,-Lord Campbell says: "If the appellant had here been exercising the right of ferry, I should have decided upon quashing the conviction. But it is clear that he was not navigating this boat within the limits of the ferry, any more than if he had been navigating it from Westminster to Lambeth. What is leased, is, 'all that ferry or ferry-place commonly called or known by the name of Potter's Ferry,' 'and also the right of ferryage from the landing-place at the point on the Isle of Dogs opposite Greenwich.' That is to be construed by the facts which we find in the case: and it is there stated that 'there is an ancient ferry (having a legal origin) called Potter's Ferry;' and that there is an ancient landing-place in the Isle of Dogs called and known as Potter's Ferry Landing-Place; and the said right of ferry has been exercised between the said ancient landing-place and a place nearly opposite, at Greenwich;' that, though upon one or two occasions people were taken off the mud-bank in the boats of the ferry Company at another point of the Isle of Dogs, and conveyed across to Greenwich,' 'there are and for many years have existed at the said Potter's Ferry Landing-Place, in the Isle of Dogs, ferry stairs, and a causeway leading from the said ferry to the water, at which the boats used in working the, said ferry commonly have *been and are kept;' that the trustees 'have been [*52 accustomed from time to time to demise the said right of ferry,' and did demise that right to Doust, whose servant the appellant was. Now, looking to the ferry as described in the agreement, and as exercised in fact, it is clear that Doust was entitled only to a ferryage from Potter's Ferry Landing-Place to Greenwich, and not from the whole of the Isle of Dogs to Greenwich. He might as well have taken passengers down to Gravesend. The place from which he did take them was Cubitt's Landing-Place, half a mile below Potter's Ferry LandingPlace: that was in law not distinguishable from taking them from a point twenty miles lower down the river. The case is therefore not within the exception in s. 99." The above facts, it is to be observed, are found in a case stated by the lessees themselves. In order to con