Opinion · Supreme Court of North Carolina
Taylor v. . Wilmington Manchester R. R. Co.
Taylor v. . Wilmington Manchester R. R. Co., 49 N.C. 277 (N.C. 1857)
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1857-06-05
- Topic
- general
Pearson, J. What are the rights of the plaintiff as the owner of a public ferry, without reference to the exception in the deed of the defendant ? He may recover damages from any one who, without legal authority, erects a ferry across the water between the same point, or so near as to draw off *282 bis custom. This is a right at common law, and is put on the ground that, as he is bound to "keep up the ferry, he is entitled to such profits as may accrue therefrom in consideration, and as a compensation, for his liability. Consequently any subtraction from the profits is wrongful, and is an injury to him.
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TAYLORv. WILMINGTON MANCHESTER R. R. CO.,49 N.C. 277(1857)
JOHN A. TAYLORv. THE WILMINGTON AND MANCHESTER
RAIL ROAD COMPANY.
Supreme Court of North Carolina
June Term, 1857.
The customers of a ferry are those wishing to go along the highway, of which the ferry constitutes a part, and whom he would be bound to transport on being called on by them, and not such as wish to travel from one of the ferry landings to a point out of the highway.
The Act of Assembly, Revised Code, ch. 101, sec. 30, recognizes the common law remedy, and further gives a penalty of two dollars for every transportation of passengers, c., within ten miles of an established ferry,if done for pay.
The object of the private Acts of Assembly in favor of William Dry, passed in 1764, and of Benjamin Smith, in 1784, was to effect a communication between the towns of Wilmington and Brunswick, by means of two ferries and a road over Eagle's island, between them; and the customers to these ferries, would be only those designing to travel along this highway, or a part of it, and would not include one designing to pass from one of the ferry landings to a point on the island not in the highway.
CASE AGREED.
The plaintiffs declared against the defendants for violating his franchise by carrying persons over the north-east branch of the Cape Fear River, from the town of Wilmington to Eagle's Island. This Island is in the said river, opposite Wilmington, and is more than a mile across. The branch of the river next to Wilmington is called theNorth-East River, and that on the other side of the island, is called theNorth-West River. The dividing line between the counties of New-Hanover and Brunswick is the middle of the Cape Fear River, and divides the island into two parts. The old town of Brunswick, which is now in ruins, stood on the western shore of theNorthWest, opposite to Eagle's Island. The plaintiff claimed the sole and exclusive right of carrying persons, c., across the two rivers, and to charge separately for eachPage 278service, and admitted the obligation of keeping up the road between them. This authority was conferred upon those under whom he claimed, by various Acts of the General Assembly, and was continued by deeds of conveyance down to himself. The portions of the said Acts, material to this question, are as follows:"An Act to encourage and empower William Dry to make a public roadthrough the great island opposite to the borough of Wilmington.
1. "Whereas a road through the great island, opposite to the borough of Wilmington, will be very beneficial to travellers going to and from South Carolina, and to others going to the town of Brunswick, and up the North West River of Cape Fear, and the said Dry being anxious to make and finish the same,
2.Be it enacted by the Governor, Council and Assembly, and by theauthority of the same, that William Dry shall, within six months after the passing of this act, stake and lay off, or cause to be staked and laid off, a road through the said island, beginning at his land, on the said island, opposite toMarketstreet, in the said borough, and running westardly the nearest and most convenient way across the North West river."
(Section 3rd prescribes the dimensions of the road, and provides for its completion within three years, under a penalty of two hundred pounds.)
4. "And to encourage the said William Dry to make and finish the said road,be it further enacted by the authority aforesaid, that, in consideration of the said Dry's making and finishing the road as aforesaid, the ferries to he kept on both sides the North East River, opposite Market street, in the borough of Wilmington, and all perquisites and profits therefrom are hereby vested in the said William Dry, his heirs and assigns forever; and the said William Dry, his heirs and assigns, shall, and may hereafter receive for transporting passengers, their horses and effects, over each of the said ferries, the following rates, c. * * *Page 279
7.And be it further enacted, that if any persons shall, for fee or reward, contrary to the intent and meaning of this Act, transport, or carry any person, or persons, their horses, carriages or effects, over either of the branches of the Cape Fear river, in order to his or their passing through or over the said island, such person or persons so offending, shall, for every offence, forfeit and pay the sum of twenty shillings, to be recovered by warrant from any justice of the peace. * *
Passed in the year 1764. Vide Martin's Col. of private Acts, 45."An Act to encourageBenjamin Smith torepair and complete the bridgesand causeways through the great island opposite Wilmington.
Whereas it appears that the encouragement formerly granted to William Dry for making a public road through the great island, opposite to the borough of Wilmington, was totally inadequate for the purposes intended, and the inferior Court of Brunswick have unanimously raised the rates of ferriage to and from the beforementioned island, and recommended to the Legislature to grant unto the proprietor of said ferries such encouragement by law as may be necessary to finish a very laborious undertaking, which will be attended with great public utility:
"II.Be it therefore enacted by the General Assembly, c., that Benjamin Smith, his heirs, c., shall, within three years, finish and complete a good and sufficient road through the island, (specifying the particulars of construction,) under the penalty of £ 500," c.
"III. And for the good encouragcment [encouragement] of the said Benjamin Smith to finish and complete the road, * *be it enacted, c., that in consideration thereof, he, the said Benjamin Smith, c., shall, and may, receive for transportating passengers, c., over the North West and North East rivers, the following rates, * * (specifying the rates,) and for going over one of the said rivers, half the said rates.
"V. (Provides a penalty for the said Smith's failing toPage 280keep the road and its appurtenances in repair, as overseers on public roads are bound.)
"VI.And be it further enacted, c., if any person or persons, shall, for fee or reward, contrary to the intent and meaning of this Act, transport or carry any person, c., over either of the branches of Cape Fear river, in order to his, or their, passing through, or over the said island, such person * * shall, for each offence, forfeit and pay the sum of five pounds." Passed in 1784. Martin's col. Private Acts, p. 140.
Mesne conveyances from Smith to W. W. Jones, and from him to Cowan, from Cowan to plaintiff, from the plaintiff to the defendants, from them to Shulken Prigge, and from them back to plaintiff, are put in the case as evidence; but it is not deemed necessary to describe them further than to say, that the deed from the defendants to Shulken Prigge contains exceptions and reservations, which the defendants contended protected them in the business done by them upon the river, which the plaintiff complains of; but as the decision of the Court turns upon another point, it is not necessary to set forth the exceptions.
It was admitted, in the case agreed, that the defendants are an incorporated company.
That the town of Wilmington, before 1847, did not extend across the river, (the North East,) but since that time, has been so extended as to include all that part of the island belonging to New-Hanover County, within its limits. Within which part of the said island are situated the plaintiff's depot, workshops, offices, warehouses, wharfs, c., a little above the ferry landing; and that here is the terminus (east) of their rail road.
It is admitted in the case agreed, that, for more than fifty years past, warehouses and wharfs have existed on the eastern side of Eagle's island, within that portion of it now included in the corporate limits of Wilmington, and for more than forty years steam mills have been in use within the same limits, the owners of which warehouses, wharfs and mills, have kept their own boats, and carried over the river from WilmingtonPage 281to their places of business, their servants, employees, and all persons who desired to visit their places, on business or otherwise, without any claim on the part of the proprietors of these ferries, for damages, or for any penalty, or forfeiture.
It is agreed that the railroad of the defendants had been completed across the North West river, and across the island, to their depot, situated as above stated, on the 1st of January, 1857, and that since that time, and before the commencement of this suit, the defendants, by means of a boat, did transport across the said North East river many persons, of whom some were their officers, agents, and appointees, passing the said river on the business of the defendants, or their own business, others were persons having business to transact with the officers and agents of the defendants, and others that had no business with the company or their agents, but passed over under that pretence; others were persons that came to attend to the reception of their goods, c., and to ship the same from the defendants' wharfs on the island; but none of the persons were so transported with a view that they were to use the plaintiff's road, or to pass through the island.
It was agreed that if, upon the foregoing facts, the Court should be of opinion with the plaintiff, a judgment should be rendered for him, and an enquiry of damages be awarded, as upon a judgment ofnil dicit;but if the Court should be of a contrary opinion, a judgment of nonsuit should be entered.
Upon consideration of the case agreed, his Honor, being of opinion against the plaintiff, ordered a nonsuit, from which he appealed.
In the assertion of this right, many difficulties were presented: What distance was so near to a ferry as to draw off its custom? Who were customers? What damages was the plaintiff entitled to? — the toll which the plaintiff would otherwise have received? — or such toll,minusthe cost of transportation? Were these matters to depend on the leaning and feeling of each particular jury? To remove these difficulties, the Act of 1764 (Rev. Code, ch. 101, sec. 30,) provides, that if any person shall, without authority, keep a ferry, or transport,for pay, any person, or his effects, across a river or water, within ten miles of a public ferry, he shall pay a penalty of two dollars for each offence, to be recovered by the nearest ferryman, c. This statute recognises the common law right against a person who erects a ferry without authority, or transports a person, or his effects, for pay. The remedy is cumulative; it fixes the distance at ten miles; the damages at two dollars; and extends the statute remedy to all persons transportingfor pay, without referenceto their being customers.
It was thought by some that the statute, by inference, denied the common law right against a person who transported any person without pay. The point was made by the case ofLongv.Beard, 3 Murph. Rep. 57. It is there held that the statute is cumulative in regard to the remedy, and left the common law rights of ferrymen untouched; and it was decided that the plaintiff had a right of action against the defendant for erecting afreeferrywithin one mile of his ferry, and opening a road on both sides of the river leading to, and from the road of which his ferry made a part, to wit, from Salisbury on one side, to Thompson's tavern on the other, and thence to Salem and Danville, whereby the plaintiff's custom was drawn off, and his profits diminished, by inducing horsemen, and other travellers, and wagons, and other carriages, passing and repassing from Salisbury to Thompson's tavern, to go by the free ferry. The decision is put upon the ground that all horsemen, and other travellers, wagons, c., passing and repassing between theterminiof the road, are customers; so that,Page 284if such customers are drawn off, the distance of the new ferry from the old one is not material, and it only becomes so in reference to the question, is it so near as to draw off custom to which the old ferry is entitled?
The principle of that case extends to one who transports a person, or his effects,without pay, provided custom to which the plaintiff is entitled is substracted; but such facts must be alleged and proven, as show that the person transported was one who would, otherwise, have passed over the road of which the plaintiff's ferry makes a part; in other words, that theterminiof the plaintiff's ferry were between the points of such person's departure and destination — were in his route, and would have been passed by him, but for the defendant's wrongful interference. HALL, J., calls attention to the fact, that every man who crosses a river at a point near a ferry, is not a customer of the ferry, "otherwise no person could set his neighbor across in a private boat."
When it is recollected that the statute forbids the transportation of persons who are not customers, as well as those who are, it is easily seen why it is restricted to a transportingfor pay, Had it extended to a transportation without pay of persons other than customers, it would have worked a grievous evil by interrupting neighborhood intercourse, and it was supposed that cases of gratuitous transportation of customers would rarely occur, and if it did, the common law remedy would correct it.
Our case then, is narrowed to this — were the persons who were transported by the defendant, from Wilmington to the depot on the island, customers of the plaintiff's ferry? Theterminiof his ferry must be fixed by reference to the charters, and the purpose for which they were granted.
Eagle's island lies between Wilmington and the old town of Brunswick. It is some mile and a half in extent — low and marshy — fit for rice fields, and not passable by carriages, or horses. The purpose of granting the charter toDry, in 1764, and continuing it toSmith, who had succeeded to his rights, in 1784, as is set out in the two acts or charters, was to get aPage 285road made across the island, so as to effect a communication between the towns of Wilmington and Brunswick. The road and the two ferries make one public highway from the one town to the other; the obligation to repair the road is the same as to keep up the ferries; but it was expedient to subdivide the toll, and allow it to be taken for passing either ferry; in the same way as toll gates are erected at convenient distances on a plank road, or turnpike, because persons might wish to cross the river at Wilmington, go over the road to the river opposite to Brunswick, and then go up the river without crossing it, or to cross from Brunswick, go over the road to the landing opposite Wilmington, and then go up the river, or leave their horses and vehicles at the landing, and cross over to Wilmington asfootpassengers; and a penalty of twenty shillings is imposed for transporting,for pay, any person, c., over either of the branches of the Cape Fear river,in order to his passing through the island. If we consider each ferry as a separate establishment, each still retains its connection with, and reference to, the road, and theterminiof the ferry under consideration, are the town of Wilmington and "a point opposite Market street,"where the road leads off. This is the plaintiff's landing — the place to which he is bound to carry persons, c., and his customers are all persons who wish to cross from Wilmington to that place; these he is bound to serve; but suppose a person wishes to go to a steam saw-mill on the island, half a mile from this point; the plaintiff is not bound to carry him there; "his rights are commensurate with his duties," therefore, this person is not one of his customers. It would be ill service to take him to the landing place of the plaintiff, and leave him to get to the mill through the marsh, or hire a boat to take him up!
The defendants' depot is on the island, some little distance from the road, and "the landing place" of the plaintiff. The persons transported by the defendants from Wilmington to the island, did not wish to cross over the island, or to use the road, or to go to the plaintiff's landing; they wished to go to the defendants' depot; but for it, they had no business, orPage 286desire to go to the island, and their going was without reference to the plaintiff's ferry, or the road; so they were not his customers.
It is unnecessary to consider the fact that, for fifty years — ever since the island has been used for rice-fields, or other purposes — every person has been crossing over the river from Wilmington to the place on the island where his business called him, without objection on the part of the plaintiff, or those under whom he claims: we have seen they have a perfect right to do so; they were not his customers. So the learning about "prescription" and "dedication" has no bearing. It is also unnecessary to consider the effect of the exception in the deed of the defendants. For, as the plaintiff has no cause of action without reference to the exception, that cannot give him one.
PER CURIAM. Judgment affirmed.