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IN error to the Supreme Judicial Court of Massachusetts. The plaintiffs in error were a corporation created by an act of the legislature of the state of Massachusetts, passed on the 9th of March 1785, entitled 'an act for incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same, during forty years.' The preamble of the act stated, 'whereas, the erecting a bridge over Charles river, in the place where the ferry between Boston and Charlestown is now kept, will be of great public utility, and Thomas Russell, Esq., and others, have petitioned this court for an act of incorporation, to empower them to build the same bridge,' &c. The act authorizes taking certain tolls, prescribed the size of the bridge, and fixed certain regulations by which it would not be permitted to impede the navigation of Charles river; and enjoined certain things to be done, by which the bridge should be kept in good order, and fitted for constant and convenient use. The fifth section of the act provided, 'that after the said toll shall commence, the said proprietors or corporation, shall annually pay to Harvard College or Univeristy, the sum of two hundred pounds, during the said term of forty years; and at the end of the said term, the said bridge shall revert to, and be the property of, the commonwealth; saving to the said college or university, a reasonable and annual compensation for the annual income of the ferry; which they might have received, had not said bridge been erected.'
The bridge was erected under the authority of this act; and afterwards, on the 9th of March 1792, in an act which authorized the making a bridge from the western part of Boston to Cambridge, after reciting that the erecting of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge, might diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise, the eighth section of the act declared, 'that the proprietors of the Charles River bridge shall continue to be a corporation and body politic, for and during the term of seventy years, to be computed from the day the bridge was first opened for passengers.'
The record contained exhibits, relating to the establishment of the ferry from Charlestown to Boston, at the place where the bridge was erected; and also the proceedings of the general courts of Massachusetts, by which the ferry there became the property of Harvard College. Some of these proceedings, verbatim, were as follows:
'A Court of Assistance, holden at Boston, Nov. 9th, 1830. Present, the Gov'nr, Dep'y Gov'r, Sir Richard Saltonatall, Mr. Ludlow, Capt. Endicott, Mr. Coddington, Mr. Pinchon, Mr. Bradstreet. It is further ordered, that whosoever shall first give in his name to Mr. Gov'nr, that hee will undertake to sett upp a ferry betwixt Boston and Charlton, and shall begin the same, at such tyme as Mr. Gov'r shall appoynt: shall have 1d. for every person, and 1d. for every one hundred weight of goods hee shall so transport.' 'A court holden at Boston, November 5th, 1633. Present, the Governor, Mr. Ludlow, Mr. Nowell, Mr. Treasu'r, Mr. Coddington, S. Bradstreet. Mr. Rich. Brown is allowed by the court to keepe a fferry over Charles ryver, against his house, and is to have 2d. for every single person hee soe transports, and 1d. a piece, if there be two or more.'
'Att the Gen'all Court, holden at Newe Towne, May 6th, 1635. Present, the Gov'nr, Deputy Gov'nr, Mr. Winthrop, sen'r, Mr. Haynes, Mr. Humphrey, Mr. Endicott, Mr. Treasu'r, Mr. Pinchon, Mr. Nowell, Mr. Bradstreete and the deputies: It is ordered, that there shall be a fferry sett upp on Boston syde, by the Wynd myll hill, to transport men to Charlton and Wenesemet, upon the same rates that the fferry-men att Charlton and Wenesemet transport men to Boston.'
'A Generall Courte, held at Newtowne, the 2d day of the 9th mo. 1637. (Adjourned until the 15th, present.) Present, the Governor, Deputy Gov'nr, Mr. John Endicott, Mr. Humfrey, Mr. Bellingham, Mr. Herlakenden, Mr. Stoughton, Mr. Bradstreete and Increase Nowell: The fferry betweene Boston and Charlestowne, is referred to the Governor and Treasurer, to let at 40l. pr. A., beginning the 1st of the 10th mo., and from thence for three years.'
'At a General Court of elections, held at Boston, the 13th of the 3d mo., A. 1640. Present, the Governor, &c. Mr. Treasurer, Mr. Samuel Sheapard and Leift. Sprague, have power to lett the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion.
'At a session beginning the 30th of the 8th mo. 1644. It is ordered, that the magistrates and deputies of ye co'rte, their passage over the fferries, together with their necessary attendants, shall be free, not paying any thing for it, except at such ferries as are appropriated to any, or are rented out, and are out of the countries' hands, and there it is ordered that their passages shall be paid by ye country.'
Further extract from the colony records, filed by the plfs.
'At a General Court, &c. 7th day 8th mo. The ferry betweene Boston and Charlestown is granted to the Colledge.'
'At a Generall Courte of elections, begunne the 6th of May 1646. In answer to the petition of James Heyden, with his partners, ferrymen of Charlestown, and of the satisfaction of all other ferry-men, that there may be no mistake who are freed, or should be passage free, and how long: It is hereby declared, that our honored magistrates, and such as are, or from time to time, shall be chosen to serve as deputyes at the Generall Court, with both their necessary attendants, shall be passage free over all ferryes; and by necessary attendants, wee meane a man and a horse, at all times during the term of their being magistrates or deputyes, but never intended all the familyes of either at any time, and that ye order neither expresseth nor intendeth any such thing.
'Att a third session of the Generall Courte of elections, held at Boston, the 15th of October 1650. In answer to the petition of Henry Dunster, president of Harvard Colledge, respecting the hundred pounds due from the country to the college, and rectifying the fferry rent, which belongs to the college: It is ordered, that the treasurer shall pay the president of the college the some of one hundred pounds, with two years forbearance, as is desired; and forbearance till it be paid out of this next levy, that so the ends proposed may be accomplisht; and for the ferry of Charles Towne, when the lease is expired, it shall be in the liberty and power of the president, in behalfe and for the behoofe of the College, to dispose of the said ferry, by lease, or otherwise, making the best and most advantage thereof, to his own content, so as such he disposeth it unto performe the service and keep sufficient boates for the use thereof, as the order of the court requires.'
The case of the plaintiffs in error is thus stated in the opinion of the court: It appears from the record, that in the year 1650, the legislature of Massachusetts granted to the president of Harvard College 'the liberty and power' to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf, and for the behoof of the college; and that under that grant, the college continued to hold and keep the ferry, by its lessees or agents, and to receive the profits of it, until 1758. In that year, a petition was presented to the legislature, by Thomas Russell and others, stating the inconvenience of the transportation by ferries over Charles river, and the public advantage that would result from a bridge; and praying to be incorporated for the purpose of erecting a bridge in the place where the ferry between Boston and Charlestown was then kept. Pursuant to the petition, the legislature, on the 9th of March 1785, passed an act incorporating a company by the name of 'The Proprietors of the Charles River Bridge,' for the purposes mentioned in the petition. Under this charter, the company were authorized to erect a bridge 'in the place where the ferry is now kept;' certain tolls were granted, and the charter was limited to forty years from the first opening of the bridge for passengers; and from the time the toll commenced, until the expiration of the term, the company were to pay two hundred pounds, annually, to Harvard College; and at the expiration of the forty years, the bridge was to be the property of the commonwealth; 'saving, as the law expresses it, to the said college or university, a reasonable annual compensation for the annual income of the ferry, which they might have received, had not the said bridge been erected.' The bridge was accordingly built, and was opened for passengers, on the 17th June 1786. In 1792, the charter was extended to seventy years from the opening of the bridge, and at the expiration of that time, it was to belong to the commonwealth. The corporation have regularly paid to the college the annual sum of two hundred pounds; and have performed all the duties imposed on them by the terms of their charter.
In 1828, the legislature of Massachusetts incorporated a company by the name of 'The proprietors of the Warren Bridge,' for the purpose of erecting another bridge over the Charles river. The bridge is only sixteen rods, at its commencement, on the Charlestown side, from the commencement of the bridge of the plaintiffs, and they are about fifty rods apart, at their termination on the Boston side. The travellers who pass over either bridge, proceed from Charlestown square, which receives the travel of many great public roads, leading from the country; and the passengers and travellers who go to and from Boston, used to pass over the Charles river bridge, from and through this square, before the erection of the Warren bridge.
The Warren bridge, by the terms of the charter, was to be surrendered to the state, as soon as the expenses of the proprietors in building and supporting it should be reimbursed; but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren bridge had not been built; and the bill was filed, after the passage of the law, in order to obtain an injunction to prevent its erection, and for general relief.
The bill, among other things, charged, as a ground for relief, that the act for the erection of the Warren bridge impaired the obligation of the contract between the state of Massachusetts and the proprietors of the Charles river bridge; and was, therefore, repugnant to the constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had been so far completed, that it had been opened for travel; and that divers persons had passed over, and thus avoided the payment of the toll, which would otherwise have been received by the plaintiffs. The answer to the supplemental bill admitted that the bridge had been so far completed, that foot passengers could pass, but denied that any persons but the workmen and superintendents had passed over, with their consent.
In this state of the pleadings, the cause came on for a hearing in the supreme judicial court for the county of Suffolk, in the commonwealth of Massachusetts, at November term 1829, and the court decided, that the act incorporating the Warren bridge, did not impair the obligation of the contract with proprietors of the Charles River bridge; and dismissed the complainant's bill. The complainants prosecuted this writ of error.
The case was argued by Dutton and Webster, for the plaintiffs in error; and by Greenleaf and Davis, for the defendants.
Dutton, for the plaintiffs.–This case comes before the court upon the bill and answer, amended bill and answer, exhibits, evidence, &c., contained in the record. The plaintiffs, in their several bills, after setting forth the grants made to them by the acts of 1785 and 1792, and their compliance with the terms and conditions of them, complain, that the defendants are about to construct, and have constructed, a bridge between Charlestown and Boston, so near to the plaintiffs' bridge as to be, in contemplation of law, a nuisance to it; and they, therefore, pray that the defendants may be enjoined, &c. The defendants justify, under the authority of an act passed on the 12th of March 1828, establishing the Warren bridge corporation. The plaintiffs allege, that this act of the legislature, under which the defendants justify themselves, impairs the obligation of a contract, and is, therefore, unconstitutional and void. The defendants, in their answer, deny this; and the issue raised by these pleadings, and the only one of which this court has jurisdiction, is, whether the said act of March 12th, 1828, does, or does not, impair the obligation of a contract.
Such being the state of the pleadings, and such the only issue which this court can try, I shall endeavor to maintain this single proposition, viz: The act of the legislature of Massachusetts, passed on the 12th of March 1828, establishing the Warren bridge corporation, is repugnant to the 10th section of the 1st article of the constitution of the United States, which prohibits a state from passing any law impairing the obligation of contracts. In the discussion of this proposition, many topics will come under examination; all, however, connected with it, and all resulting in the affirmance or denial of it.
By the preamble to the plaintiff's charter, which was passed on the 9th of March 1785, incorporating the plaintiffs, it appears, that the bridge is to be erected 'in the place where the ferry between Boston and Charlestown is now kept;' and by the 5th section of the act, it is provided, that 'after the said toll shall commence, the said proprietors or corporation, shall annually pay to Harvard College or university, the sum of 200l., during the said term of forty years.' The plaintiffs' charter, therefore, upon its face, shows that certain transactions took place between the legislature, the college and the grantees. The ferry that belonged to the college is to be extinguished, and a bridge is to be erected in its place; an obligation is imposed upon the grantees to pay to the college the sum of 200l. annually; and there is a recognition of a right in the college to compensation for the loss of the ferry, after the plaintiffs' charter has expired.
All this leads to an examination of the ferry, and its legal history, as it appears by various colonial ordinances; together with the nature and extent of such a franchise, at common law. On the 9th November 1630, the colonial government make an offer of a ferry to any one who will undertake to set it up, between Boston and Charlestown, and fix the rates of ferriage, &c. On the 5th of November 1633, Richard Brown in allowed to keep a ferry over Charles river, against his house, and the rates are there stated. It does not appear, where this ferry was, nor whether it was ever set up. On the second day of the 9th month, 1637, this ordinance was passed. 'The ferry between Boston and Charlestown is referred to the governor and treasurer to let, at 40l. per annum, for three years.' On the 13th of the 3d month, 1640, it is referred to Samuel Shephard and others, to let the ferry between Boston and Charlestown, when the time of Edward Converse is expired, &c. On the 7th of the 8th month, the ferry was granted to the college in these words: 'The ferry between Boston and Charlestown is granted to the college.' By this ordinance, which, with others, relating to ferries, will be found in the 58th and 57th pages of the record; it appears, that the lease to Converse was about to expire, and that there was, at that time, no other ferry in existence between Boston and Charlestown.
At a session of the court, held on the 30th of the 8th month, 1644, it is provided, that magistrates, with their necessary attendants, shall have free passage over all ferries that have not been granted or leased to any; and their passage shall be paid by the country. On the 6th of May 1646, an ordinance was passed, explaining the foregoing ordinance, and declaring what is intended by necessary attendants, for the satisfaction of the ferrymen; and making magistrates passage free, over all ferries. This ordinance exempts magistrates at all ferries, contrary to the act of 1644; and is the only one, during a period of 45 years, which, in the smallest degree, affects the income of the ferry. Whether the amount to be charged to the country was found to be too trifling to keep an account of, or whether the exemption at all ferries was claimed by the magistrates, after royal example, and as being the representatives of the royal authority, does not appear.
It appears by the ancient charters, that the college was incorporated in May 1650. Various acts were passed, confirming the original grant to the college, both before and after the act of incorporation. By the ordinance of 1642 (Ancient Charters, p. 77), the 'revenue of the ferry between Boston and Charlestown,' was given to the college. In the act passed on the 15th October 1650, it is provided, that for the ferry to Charlestown, when the lease is expired, it shall be in the liberty and power of the president, in the behalf and for the behoof of the college, to dispose of the said ferry, by lease or otherwise, making the best and most advantage thereof, to his own content, &c. The act passed on the 18th October 1654, speaks of the 'ferry formerly granted to the college;' and the act of 27th June 1710, speaks of the 'profits and revenues of the said ferry being granted to Harvard College, in Cambridge.' Thus it appears, that the original grant of this ferry, in 1640, was confirmed in 1642, in 1650, in 1654 and in 1710.
Various acts regulating ferries were passed by the colonial government, and several regulating the ferry between Boston and Charlestown. They relate to the duties of the ferrymen, the convenience of the ferry ways, the number of boats, &c. The act passed in 1781, provides, that whenever the corporation of Harvard College shall make any alteration in the rates of ferriage, they shall publish the rates by them established. In 1713, there was a project for building a bridge, where the ferry was kept, and a committee was appointed by the corporation of the college, to 'insist on the right which the college hath in and to the profits of the said ferry;' and the government, at the same time, appointed Dr. Clark, to confer with the president and fellows upon the affair of a bridge in place of the ferry. Thus, then, it appears, that the college held this ferry for 145 years, with all the common-law rights of ferries; subject only to such regulations as the colonial and state governments saw fit, from time to time, to make. First, the ferry itself was granted; afterwards, its profits, revenues, &c. If one grants the profits of his land, the land itself passeth. Comyn, tit. Grant, E. 5.
In order to understand the nature and extent of this franchise, resort must be had to the common law; and this has been uniform, from the time of Henry VI. to the present time. It is also the law of this country, except in cases where it can be shown that it has been overruled by adjudged cases, or modified by state. In the Termes de la Ley 338, a ferry is called a liberty, by prescription, or the king's grant, to have a boat for a passage upon a great stream, for carrying of horses and men for reasonable toll. It is called an incorporeal hereditament, and is either founded in grant, or prescription, which supposes a grant. In the one case, the extent of the franchise is ascertained by usage; in the other, by the terms of the grant. 2 Dane's Abr. 683; Stark v. McGowan, 1 Nott & McCord 387. It may belong to the government, to a corporation, or to an individual; the property may be private, though the use is public. In 10 Petersd. 53, it is said, that these franchises, which are various, may be 'vested either in the natural person, or bodies politic; in one man, or in many; but the same identical franchise that has been granted to one, cannot be bestowed on another, for that would prejudice the former grant.' Also, 13 Vin. Abr. 513.
In a note to the case of Blisset v. Hart, Willes 512, it is said: 'A ferry is publici juris; it is a franchise, that no one can erect without the king's license; and when one is erected, another cannot be erected without an ad quod damnum. If a second is erected, without license, the crown has a remedy by quo warranto; and the former grantee, by action.' If the ferry be not well repaired, it is popular, and in the nature of a highway, &c. It is to be reformed by presentment or information. This differs from the case of mills, bake-houses, &c., which are grounded on customs, and of a private nature. Hardr. 163.
Every owner of a ferry must have a right to land, to take in his passengers. He need not own the soil, but he must have a right to use it. 12 East 330; 6 Barn. & Cres. 703. The general doctrine is laid down in 22 Hen. VI. 15-16. 'If I have a ferry by prescription, and another is erected so near as to impair my ferry, it is a nuisance to me; for I am bound to sustain and repair the ferry for the use of the king's lieges; otherwise, I may be grievously amerced.' In Roll. Abr. 140, Nuisance G, line 20, the same doctrine is stated with reference to a fair or market. Hale, in a note to Fitzherbert's Nat. Brev. 428, says: 'If the market be on the same day, it shall be intended a nuisance; but if it be on a different day, it shall not be so intended; and therefore, it shall be put in issue, whether it be so or not.' Citing, 11 Hen. IV. 5-6. If a ferry be erected with license, another cannot erect a ferry to the nuisance of it. Com. Dig. tit. Piscary, B. He states the same doctrine in another place: 'tit. Action on the Case for Nuisance, A.' 'So, if one erect a ferry so near my ancient ferry.' 3 Bl. Com. 3, 219; 1 Nott & McCord 387.
It is the usual practice, in England, to issue the writ of ad quod damnum, before the patent for a fair or market is granted. But as the execution of this judicial process does not, and cannot, always ascertain what will be the effect of the proposed market or fair; the doctrine seems to be well settled, that in case it does prove to be injurious to any existing market or fair, the patent may be repealed, upon proof of the fact. In other words, the writ of ad quod damnum, executed, is not conclusive. 6 Mod. 229; 2 Vent. 344; 3 Lev. 220; Hale, de Port. Maris, Hargrave's Tracts 59; Com. Dig. Patent, F. 4-7; 1 Wms. Saund. note 4, p. 72; 2 Inst. 406. It is thus stated by Chitty, in his Prerogatives of the Crown, ch. 10, § 2: it is most important to remember, that the king does not grant a market or fair, without a writ of ad quod damnum being first executed; even if that be done, the crown cannot enable a subject to erect a market or fair so near to that of another person, as to affect his interest therein, &c.
The owners of ferries are under liabilities and obligations, which may be enforced against them by individuals, or the public. Their franchises are declared to be publici juris; and the law gives a remedy in all cases of negligence or injury, by presentment, information or action on the case. Payne v. Partridge, 2 Salk. 718; Willes 512; 3 Salk. 198. They have also rights which can be maintained at law, by action on the case for a disturbance; by action of assize; by distress; &c. 2 Wms. Saund. 114; 4 T. R. 666; 2 Dane's Abr. 683; Bac. Abr. tit. Distress, F. pl. 6; Cro. Eliz. 710; 6 T. R. 616; Huzzey v. Field, 2 Cr. M. & R. 432.
All these franchises, as of fairs, markets, ferries and bridges, are founded on good and sufficient consideration; such as the expenditure of money in establishing and maintaining them, for the convenience and safety of the public. They are all publici juris, and from the rights, liabilities and duties of which they are compounded, results the notion of property in them. The toll, or right to demand and receive money for the use and enjoyment of these franchises, of which the toll is part and parcel, is recognised as property, and protected as property, both by the law of England, and of this country. A grant of these vests in the grantee a beneficial interest, which may be demised, leased or mortgaged. Poph. 79; Moore 474; Webb's Case, 8 Co. 92; Gunning on Tolls 106, 110; 6 Barn. & Cres. 703; 5 Ibid. 875; 3 Maule & Selw. 247; 1 Crompt. & Jerv. 57; in the Exchequer, p. 400. The franchise of a bridge or turnpike may be taken on execution in payment of debt, by the law of Massachusetts. In Chadwick's Case, an action was brought at common law, and sustained by the court, for compensation for the loss of his ferry, by the erection of a bridge. 2 Dane's Abr. 686; also Judge Putnam's opinion, 7 Pick.
As to the local extent of this franchise of a ferry, an attempt has been made to limit it to the ferry-ways; and the case of Ipswich v. Brown, Sav. 11, 14, is cited; where it is said, that a 'ferry is in respect of the landing-place, and not in respect of the water, that the water may be in one, and the ferry in another;' it is also said in this case, that the owner of the ferry must own the soil on both sides. This last part of the case is expressly overruled in 6 Barn. & Cres. 703. And as to the other part of the case, it means nothing more than this, that a ferry must have ferry-ways or landing places. The case in Hardr. 162, was this; one owning land on both sides of the Thames, set up a ferry, three quarters of a mile from an ancient ferry, at Brentford. A bill was brought in the exchequer to suppress it, as coming too near a monopoly. The reporter adds, sed quaere de ceo; for contrary, to the books of 22 Henry VI., and to precedents in like cases in this court. Afterwards, another bill being filed for the same matter, the court, on the 7th of April, Lord HALE presiding in it, decreed, that the new ferry should be suppressed, and that the defendants should not have liberty to use any ferry-boat to the annoyance of the plaintiff's ancient ferry. 2 Anstr. 608.
In the case of the Newburgh Turnpike Company v. Miller, 5 Johns. Ch. 101, the principle is clearly stated and applied. The plaintiffs in this case, had erected a bridge, as part of their road, across the Wallkill; the defendants erected another free bridge, eighty yards distant; purchased a strip of land adjoining the bridge, and had a road laid out by commissioners as a public highway, for the purpose of avoiding the toll-gate of the plaintiffs. KENT, Chancellor, said: The quo animo is not an essential inquiry in the case; whatever may have been the intention of the defendants, the new road and bridge do directly and materially impair the use and value of the plaintiff's franchise. No rival road, bridge, ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration by which individuals are invited to expend money upon great expensive and hazardous public works, such as roads, bridges; and to become bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away by direct or indirect means. Also cited, Ogden v. Gibbons, 4 Johns. Ch. 150.
It appears from the Ancient Charters of the colony of Massachusetts, p. 110-11, that the same notions of an exclusive right in ferries prevailed there, that have always prevailed in England. For, as early as 1641, near the time when the 'ferry between Boston and Charlestown was granted to the college,' this ordinance was passed: 'It is ordered by this court, and the authority thereof, that whosoever hath a ferry granted, shall have the sole liberty of transporting passengers,' &c. Here is a direct assertion of an exclusive right in the owners of a ferry; and is worthy of notice as a contemporaneous exposition; and can it be reasonably doubted, that Edward Converse, under his lease from the government, of 'the ferry between Boston and Charlestown,' had the sole and exclusive right of transporting passengers between those termini?
All, therefore, which the plaintiffs claim in the case at bar, is an exclusive right between Boston and Charlestown; and if they have any exclusive right, it must have some local extent beyond the ferry-ways, or the planks of the bridge; otherwise, it would not be exclusive. If any one, at his pleasure, could have lawfully carried passengers from Boston to Charlestown, and landed them within two feet of the ferry-ways of Converse, he would not have had the sole right of carrying between those points. No other ferry or bridge could be erected between those termini, without 'being near, in a positive sense;' which is the form of expression in which Chief Justice PARKER lays down the rule; without being so near, in the language of Blackstone, as to draw away the custom of the elder ferry or bridge; or without producing, in the language of Chancellor KENT, ruinous competition. With this extent, therefore, the college held the ferry on the 9th of March 1785, when the act passed, making the plaintiffs a corporation for the purpose of erecting a bridge in the place where the ferry was kept; and the view we take of this transaction is this, that the corporation created by this act became the assignees, in equity, of this franchise, or it was surrendered to their use by operation of law. 2 Thomas' Co. Litt. 553; 6 Barn. & Cres. 703.
A bridge, in place of the ferry over Charles river, is deemed by the legislature to be a matter of public utility; and they are disposed to grant a liberal charter to such persons as are willing to undertake so hazardous an enterprise. The college are ready to part with their ferry for an annuity, equal to their then income; and Thomas Russell and his associates, are willing to make the first experiment in this country, of throwing a bridge, 1500 feet in length, over navigable waters, for the tolls to be granted to them, for the period of forty years. The ancient ferry, then, is to be extinguished; which could not be done without the authority of the government, nor without the consent of the college. 3 Mod. 294. The petitioners are to pay 200l. annually, to the college, for forty years, as a compensation for the loss of the ferry; and to this agreement the college became a party, by its assent given at the time, and its subsequent acceptance of the annuity. The right to keep up a ferry at this place is extinguished, but the beneficial interest of the college is not; for in the act, there is a 'saving to the college of a reasonable and annual, compensation for the annual income of the ferry.'
It is said, that the government seized the franchise of the ferry. If this were so, then it passed with the grant of a right to build a bridge, 'in the place where the ferry was kept;' agreeable to the doctrine in Palmer's Case, Poph. 78; 9 Co. 26; 10 Ibid. 64-5. But there is no evidence that the government did, or intended to, seize the franchise, as private property, for public use, in the exercise of the eminent domain. There was no necessity or motive for doing this; because the petitioners for the bridge had agreed to pay the college for the surrender of their ferry for the forty years; and their act of incorporation confirmed and executed that agreement. The whole transaction shows, that it was a matter of previous arrangement between the three parties; and the terms and conditions of the bargain were made obligatory of the act.
Now, it is obvious, that if the government had given the college an authority to build a bridge, 'in the place where the ferry kept;' it would have the same local extent of franchise that the ferry had. Or, if the proprietors of Charles River bridge had first purchased the ferry of the college, and afterwards had obtained a charter to build a bridge, 'in the place where the ferry was kept;' the result would have been the same. The beneficial interest vested in the owners of the ferry and of the bridge, is the same, to wit, a right to demand and receive a certain rate of toll from all persons passing from one town to the other; the place the same; the object the same; the mode only different.
The power of regulating all these franchises, which are publici juris, is in the government. It is an incident of sovereignty. In the case of ferries, it extends to the number and place of the ferry-ways, the number and kind of boats, the times of putting off from each side; reaching to all those details which concern the convenience and safety of passage and transportation. In the case of a bridge, this power of regulation in the government is exerted, at the time the charter is granted. The place where the bridge is to be built; its dimensions, materials, lights, draws and other details, are prescribed and settled by the act: and the government act upon the corporation, by holding them to a strict performance of all the dutes imposed.
The charter of 1785 and its extension in 1792: The first grant was of a right to build a bridge over a navigable river. It was an exercise of the sovereign power of the state over certain public rights. By the severance of the empire, and the consequent independence of the states, all public property and public rights vested in the states, as successors to the crown and government of the parent country. The power of Massachusetts, in the year 1785, was, therefore, as ample and complete over these as it had ever been before the separation. Such rights as these have always been held in England by grant or prescription, exclusively as private property; such as fisheries in arms of the sea; ferries and bridges over navigable rivers or arms of the sea, subject only to such regulations as public convenience required. In grants that abridge public rights, it is generally held, that a consideration must be shown. Hargrave's Law Tracts, 'De Jure Maris,' 18-36; Angel on Tide Waters 106-7. In Carter v. Murcot, 4 Burr. 2162, Lord MANSFIELD says, 'on rivers not navigable, the proprietors of the adjoining land own ad filum medium aquae; not so in arms of the sea; but if he can show a right by grant, or prescription, which supposes a grant, he may have an exclusive right in an arm of the sea or navigable river.' In the following cases the same doctrine is clearly laid down. 4 T. R. 439; 2 Bos. & Pul. 472; 1 T. R. 669; 1 Mod. 105; 4 T. R. 668. Such is the law of England.
It is the law of Connecticut. In 1 Conn. 382, the court say, 'that the right of fishing, by the common law, in the ocean, in arms of the sea, and in navigable rivers, below high-water mark, is common to all; and the state only can grant exclusive right. The public may grant an exclusive right of fishing in a navigable river; and if it may be granted, it may be prescribed for.' It is the law of New York. See People v. Platt, 17 Johns. 195. It is the law of Massachusetts. In 6 Mass., Chief Justice PARSONS states the common-law doctrine, and the alterations it has undergone since the first settlement of the country. Commonwealth v. Charlestown, 1 Pick. 180. With regard to riparian owners of land upon streams, not navigable, the common law has not been modified; they own, as in England, to the middle of the stream. But with regard to the owners of land bounding on the sea-shore, or arms of the sea; they own, by the law of Massachusetts, to low-water mark, where the tide does not ebb more than one hundred rods; though, by the common law, they could hold only to high-water mark, for all below belonged to the king. Yet they might hold by grant or prescription against the king. 1 Mass. 231; 17 Ibid. 289; 4 Ibid. 140; Angel on Tide Waters; 4 Mass. 522. An act of the legislature of Massachusetts, touching public property or public rights, has the same force and effect as an act of parliament in England. There is, then, no restraint or limitation upon the power of the grantor over the subject-matter of this grant; none in the constitution of Massachusetts; none in the act itself, that interferes with the possession of an exclusive right by grantees.
The rule of construction applicable to this charter: It was said by a learned judge, in the court below, that the general rule of law was, that in governmental grants, nothing passed by implication. Where, I would ask, is any such general rule to be found? Not in the books, surely; nor can it be inferred from adjudged cases. All those cited in support of the rule are cases of crown or prerogative grants; and these, as strongly intimated by Chief Justice EYRE, 2 H. Bl. 500, stand on a different footing from grants by acts of parliament. But with regard even to these crown grants, where the royal prerogative is entitled to the most indulgence, and where the grant is made at the suit of the grantee, there are a variety of cases where valuable rights, privileges and franchises pass by necessary implication. Bac. Abr. tit. Prerogative, F. 2; Plowd. 366-7; Rex v. Twine, Cro. Jac. 179; 9 Co. 30; Dyer 30; Sav. 132; 1 Vent. 409; Whistler's Case, 10 Co. 64-5.
The general rule is thus laid down by Chitty on Prerogative, ch. 16, § 3, p. 391. In ordinary cases, between subject and subject, the principle is, that the grant shall be construed, if the meaning be doubtful, most strongly against the grantor; who is presumed to use the most cautious words for his own advantage and security: but in the case of the king, whose grants chiefly flow from his royal grace and bounty, the rule is otherwise; and crown grants have at all times been construed most favorably for the king, where a fair doubt exists as to the real meaning of the instrument. But there are limitations and exceptions even to this rule: 1st. No strange or extravagant construction is to be made in favor of the king; if the intention be obvious, royal grants are to receive a fair and liberal interpretation. 2d. The instruction and leaning shall be in favor of the subject, if the grant show that it was not made at the solicitation of the grantee; but ex speciali gratia, certa scientia, et mero motu regis. 10 Co. 112; Com. Dig. Grant, C. 12. 3d. If the king's grants are upon a valuable consideration, they shall be construed strictly for the patentee. The grants of the king, when valid, in general, bind him, though without consideration, as subjects are bound by their grants: ch. 16, § 5.
There are cases, in which it is said, that when those things, which are said to be parcel of the flowers of the crown, such as the goods of felons, waifs, estrays, &c., come into the king's possession, they are merged in the crown, and do not pass, without express words; but even these will pass, if they can be made certain by reference. The case of The Banne, which has been cited, is explained by Justice BAYLEY in this way, in the case of the Duke of Somerset v. Fogwell, 5 Barn. & Cres. 875. There is, then, no foundation in law for the supposed analogy between crown grants in England, and grants by legislative acts in this country. But if the act of 1785 were subjected to the strictest rules applicable to crown grants, it would be entitled to a liberal construction for the grantees; for it is upon a good, a valid, an adequate, and a meritorious consideration. The state of Massachusetts is as much bound by necessary implication in its grants, as individuals are. This is decided in the case of Stoughton v. Baker, 4 Mass. 522.
The true notion of prerogative in this country, is well stated by PARSONS (arguendo), in 1 Mass. 356, as distinguished from prerogative in England. In England, prerogative is the cause of one against the whole; here, it is the cause of all against one. In the first case, the feelings, the vices, as well as the virtues, are enlisted against it; in the last, in favor of it: and therefore, here it is more important that the judicial courts should take care that the claim of prerogative should be more strictly watched.
In the opinion of a learned judge in the court below, we are told, that if the king makes a grant of lands, and the mines therein contained, royal mines shall not pass: and why not? Because, says the same authority, the king's grants shall not be taken to a double intent; and the most obvious intent is, that they should only pass the common mines, which are grantable to a common person. That is, the grant shall not draw after it what can be separated, and what is not grantable to a common person, but is a special royalty, a crown inheritance: and yet this case, and others like it, are cited in support of the pretended rule, that in governmental grants, nothing passes implication.
What is the consideration of the case, in the grant at bar? The grantors themselves furnish the highest evidence of its merit. In the act incorporating the proprietors of West Boston bridge, in the year 1792, they say, 'Whereas, the erection of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge, may diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise,' &c. It was hazardous, for no attempt at that time had been made to carry a bridge over tide-waters; and so doubtful were the subscribers of its stability, that a number of them insured their interest in it. The hazard was all their own; and so great was it thought to be, that upon the breaking up of the ice, persons assembled on the shore to see it carried away. It has stood, however, against time and the elements; it has stood against everything but legislation. It was opened with processions, and every demonstration of a general rejoicing; and was considered, at the time, as an enterprise of great patriotism, as well as of utility.
This charter is to receive a judicial construction, and the words of grant are to be subjected to a judicial analysis. What relations do the words raise? What rights are extinguished; what required; and what covenants are implied? In the case of Fletcher v. Peck, 6 Cranch 37, the grant in that case is said to be a contract executed; the rights of the grantor are said to be for ever extinguished; and a contract implied, never to re-assert his right; but none of these things appear upon the face of the deed. It is said, there is a mode of writing with sympathetic ink, which cannot be read till it is held up to the light. So, words of grant, must be held to the light of judicial interpretation. When the relations which the words give rise to, are unfolded, the rights that are extinguished, and the rights that are acquired, and the covenants that are implied, all become clear and legible.
In examining the charter of 1785, I shall consider: 1st. What is granted by express words? 2d. What, by necessary implication?
In the third section of the charter, are these words: 'And be it further enacted by the authority aforesaid, that, for the purpose of reimbursing the said proprietors the money expended, or to be expended, in building and supporting the said bridge, a toll be and hereby is granted and established, for the sole benefit of the said proprietors.' Upon the authorities already cited, and upon the strong reason of the case, these words vest, absolutely, in the grantees, a franchise, without condition and without reservation; and this franchise is property, recognised as such, and protected as such, both by the the law of England and by the law of this country. In order, then, to make this protection which the law affords, available, it must be exclusive to some extent; enough, at least, to keep down ruinous competition. All this is conferred upon and vested in the proprietors of Charles River bridge, by these few words of the charter.
In 1 Crompt. & Jerv. 57, and 400, in the exchequer, it appears, that a charter was granted to the Corporation of Stamford, in 2 Ann., c. 13, with a right to take toll, without saying how much. Chief Baron ALEXANDER says, 'We think that where a grant of tolls is found in a charter, the word ought to have some meaning, and the charter some operation; and that it can receive operation only by being construed to mean a reasonable toll.' He goes on to say, 'if we were to decide against this charter, upon the principles contended for, we should shake the security of a vast mass of property, which has been enjoyed, undisturbed, for perhaps ages.'
Again, it is declared expressly, that this toll shall continue for and during the period of forty years. What is the meaning of this limitation? The bridge is to remain, and be delivered to the government, in good repair, at the end of the term. If the corporation are merely tenants at will of this franchise; if the legislature can eject them at pleasure; if they can rightfully shorten the term, when they please, and as much as they please, the limitation to forty years expressed in the charter, becomes absurd and contradictory. It must, however, be construed to mean something; and it can have no reasonable or consistent meaning, but that of an absolute, unconditional grant of tolls for forty years. Again, the maintenance of the bridge, and the annuity to the college, run with the charter; and the grant of tolls is made, in express words, for these two objects. Here, then, are two obligations imposed by the charter; one to support the bridge, which amounts, upon an average, to about $5000 a year; and the other to pay to the college 200l. a year; and a toll is granted as the means, and the only means, of fulfilling these obligations; and yet the legislature, the grantors of this charter, claim and exercise the right of wholly withdrawing these means from the corporation, by an indirect act, and leaving these obligations upon them in their full force. Does not this, if anything can, impair the obligation of a contract?
Whence is derived the power or the right to do this? Is it to be found in the charter? No! That grants a toll for forty years, absolutely, without condition or reservation. What, then, is the nature of this mysterious power of the government, that can lawfully resume its own grants; destroy its own contracts; disregard the obligations of good faith; and trample upon every principle of equity and justice?
In the case of Wales v. Stetson, 2 Mass. 146, Chief Justice PARSONS says, 'We are also satisfied, that the rights legally vested in this or in any corporation, cannot be controlled or destroyed, by any subsequent statute; unless a power for that purpose be reserved to the legislature, in the act of incorporation.' This case, like the one at bar, was a grant of a franchise; and here we have the solemn judgment of the supreme court of Massachusetts, upon its inviolability, in the absence of any such reserved power. In the case of the East India Company v. Sandys, 7 State Trials 556, it appears, that there was this condition inserted in the charter, 'that if it should hereafter appear to his majesty, or his successors, that that grant, or the continuance thereof, in whole or in part, should not be profitable to his majesty, his heirs and successors, or to this realm, it should, after notice &c., be void.' Thus, it appears, that even in the opinion of Lord Chief Justice JEFFREYS, no feeble supporter of royal prerogative, a charter could not be repealed or annulled, unless a power for that purpose was reserved in it to the grantor.
Thus far the case at bar stands upon the very words of the grant; upon the legal and obvious construction of the act itself, without resort to those necessary implications which arise from the nature of the grant.
2. What is granted by necessary implication? The general rule of law is thus laid down in Co. Litt. 56 a, 'When the law doth give anything to one, it giveth impliedly whatsoever is necessary for the taking and enjoying the same.' Case of the Mines, 1 Plowd. 317. 'For the ore of gold and silver is the king's; and if it is, the law gives him means to come to it, and that is by digging; so that the power of digging is incidental to the thing itself.' If one grant to another all the minerals in a certain parcel of land; the grantee has a right to go upon the land, and dig, and carry away the ores.
In one thing, all things following shall be included: lessee of land has a right of way on lessor's land; grantee of trees, growing in a close, may come upon the land to cut them, &c. Finch 45, Rule 100. The grant of a thing carries all things included, without which the thing granted cannot be had. Hob. 234; also Saunders's Case, 5 Co. 12; Lifford's Case, 11 Ibid. 52; and 1 Wms. Saund. 322.
Upon these authorities, the only question is, are tolls necessary or essential to the enjoyment of this franchise? Just as necessary and essential as air is to the support of animal life. They are part and parcel of the franchise itself; its very essence, substance and life. What is our franchise, without tolls? It is compounded of certain rights and certain obligations. The rights are, to be a corporation, with the usual powers incident to corporations; such as the right to have a common seal; to sue and be sued; to maintain a bridge over navigable waters; to demand toll of all persons passing over the bridge, & c. The obligations are, to maintain the bridge at an expense of $5000 a year; to pay Harvard College 200l. a year; and to deliver up the bridge in good repair, at the end of forty years.
The rights are without value, utterly barren and fruitless; the obligations are oppressive and lasting as the charter. Yet a learned judge, in the court below, says, 'that a trader or innholder, has as good a right to be protected in the enjoyment of the profits of his store or inn, as the plaintiffs have to be protected in the enjoyment of their tolls.' Is a trader's shop or a taverner's license a franchise?
Since the first Wednesday of March last, the Warren bridge has been free; and the necessary consequence has followed, viz., the entire destruction of the plaintiffs' franchise. One thing more remains to be done, and then the work will be finished. The attorney-general will be directed to file a quo warranto against the corporation, for a non-compliance with some of its public duties, and a decree of forfeiture of the franchise will be obtained. This must inevitably happen, unless it can be presumed, that this corporation will continue to maintain the bridge, at their own private expense, for the public accommodation. The government will then have got into their possession two bridges, without the expenditure of a dollar: one having been paid for out of the fruits of the franchise of Charles River bridge; and the other obtained by a decree of forfeiture, for not complying with its obligations. In the meantime, the proprietors of Charles River bridge may well look upon the proceedings of the government with amazement. But a few years since, and they held a property in this franchise, which cost them $300,000; and where is it now? 'They are charged with no fault, neglect of duty or breach of any condition; no judicial process has ever been issued against them; and yet, without a cent of compensation, they are stripped of this property by the mere force of legislation. By what transcendental logic, can such a result be justified, upon any principles of law, equity or good faith?'
Among the various pretences that have been put forth in justification of the act complained of, is this, to wit, that the charter is nothing more than a license to obstruct navigable waters. In 15 Vin. Abr. 94, License, E, it is said, if a certain time is limited, it is not revocable, though the thing is not done. License executed is not countermandable. The same law is, if one license me and my heirs to come and hunt in his park, it is necessary for me to have this license in writing; for something passes by the license, in perpetuity; but if the license be to me, to hunt once in his park, this is good, without writing, for no inheritance passes. 11 Hen. VII. p. 9. There is a great diversity between a license in fact, which giveth an interest, and a license in fact, which giveth only an authority or dispensation; for the one is not to be countermanded, but the other is. A license is revocable unless a certain time is fixed. Sir William Webb v. Paternoster, Poph. 151; Taylor v. Waters, 1 Taunt. 374; Liggins v. Inge, 5 Moore & Payne 712. So it appears, that if a license is in writing to one and his heirs, it is not revocable; 2d. If it passes an interest, it is not revocable; and 3d. If it is for a time limited, it is not revocable. The case at bar embraces all these: it is in writing; it passes an interest; and is for a time limited. The grant to the proprietors of the Charles River bridge, both by express words and by necessary implication, vests in them absolutely, a franchise, a beneficial interest, for forty years; and this interest consists of a right to levy money, according to certain fixed rates, upon the line and course of travel between Charestown and Boston.
But it is said, that a line of travel is uncertain, and cannot be defined; that it often changes, according to the exigencies of society. And this, to some extent, is doubtless true; and it is also true, that from the changes that are constantly taking place in human affairs, a bridge or ferry may be subjected to incidental injuries. It sometimes happens, that a consequential damage may be suffered by one, arising out of the lawful use of property by another. The grant of the West Boston bridge and of the canal bridge, affected in some degree the income of Charles River bridge; but these were between different termini, opening new avenues into the country, and giving better accommodation to a large amount of population. They were grants of similar franchises, called for by public exigencies; and not directly and apparently, intentionally interfering with former grants. The revival of Winnisemmit ferry has somewhat diminished the travel through Charlestown; but it is between Boston and Chelsea, and is coeval with the ancient ferry between Boston and Charlestown. Whatever damage, therefore, is suffered, arising from the changes or progress of society; from political or commercial arrangements; from the natural course of business or industry, is regarded, and must be borne, as merely incidental. But the voluntary, direct and fatal action of the government upon its own former grant, is not incidental, and does not belong to cases of consequential damage,
The facts in the case at bar are peculiar, and distinguish it from all other cases of a similar nature. The abutments of the two bridges are 260 feet apart on the Charlestown side; and the avenues to them meet in Charlestown square, at the distance of about 400 feet from the abutments. On the Boston side, the abutments of the two bridges are about 900 feet apart, and the avenues to them meet in Boston, at the distance of about 1400 feet. The distance from Charlestown square to all the business parts of Boston, over these bridges, is within a few feet the same; so that the same accommodation is afforded by both bridges. Now, as all the roads leading into and from Charlestown, terminate, or cross each other, in this square, it follows, that all the travel which now goes over the Warren bridge would, with equal convenience, have gone over Charles River bridge, if that had been the only avenue between Boston and Charlestown. The new bridge has connected no new line of travel with the old; it has not shortened the distance between the two termini, nor given any other additional accommodation, than two parallel bridges give over one. Of the necessity of two bridges, some judgment may be formed from this fact: about 3000 foot passengers passed over Charles River bridge in one day, and about 750 vehicles of all descriptions, as appears by the record; about 80,000 foot passengers, and 4000 vehicles go over London bridge every day. The travel, therefore, from Charlestown to Boston is a unit; it is now, and always has been, and always must be, the same line of travel. The grant of the Warren bridge, therefore, which, while it was a toll bridge, diverted two-thirds of this travel from Charles River bridge, and since it has become free, diverts the whole, is a grant of the same franchise. It is, in its effect and operation, the entire destruction of property, held by an older title; the resumption of a grant, which this court has declared to be a contract executed; by which the rights of the grantor are for ever extinguished, and a covenant implied on his part never to re-assert his rights. But in the case at bar, the grantor has re-asserted his right over this franchise; and has thus impaired the obligation of his contract.
A learned judge in the court below, in commenting upon the extent of the franchise of the bridge, remarks, that it is either confined to the planks, or in other words, has no local extent; or else, extends to the old bridge in Cambridge, a distance of some three or four miles. Now, it is a little remarkable, that the proprietors of the Charles River bridge, do not now, and never have claimed any such local extent; all they have ever claimed, or do now claim, is an exclusive right between Charlestown and Boston. Yet, in order to make the claim odious, it is represented as extending over the whole river. But how does the learned judge get at this conclusion, that the extent of this franchise is either everything or nothing? Not, surely, from the declarations of the proprietors, for they have uniformly limited their right in the manner stated; nor from the books of common law, for in them, the rule is stated with great uniformity and precision, and runs through the whole current of authorities, from Hen. VI. to the present time. The rule of the common law is, that if a rival market, bridge or ferry, is erected so near an existing one as to draw away its custom, essentially to impair its value, materially to diminish its income or profits; near in a positive sense, so near as to produce ruinous competition, &c., it shall be deemed a nuisance.
But it is asked, what and where are the boundaries of these rights? And because they cannot put their finger on the precise spot in the river, where private right ends and public right begins, they have no right at all; because the common law does not, unhappily, furnish a pair of compasses to measure the exact local extent of this franchise, it has no extent at all; because it does not cover the whole river, it is confined to the width of the bridge. Does the law, or do learned judges, deal with nuisances on land in this way? How near to a dwelling-house may one establish a noisome or unwholesome manufactory? Does the common law measure the distance, and say, here it shall be deemed a nuisance; and there is shall not? And how is it to be determined, whether it be a nuisance or not, but by the fact? It is a matter of evidence, and is to be proved like any other fact. Is the atmosphere filled with a noxious effluvia? Are the comfort and value of the dwelling impaired by this establishment? Then it is a nuisance, whether it be at the distance of ten rods or half a mile. So, in the case at bar, it is the fact, rather than the distance, that is to determine whether a rival bridge is a nuisance or not. Does it greatly impair the value of the elder franchise? Does it essentially diminish its profits? Does it wholly ruin it? These are all matters of evidence; facts to be proved; and courts and juries, in the exercise of a sound discretion upon all the facts and circumstances of each particular case, will give a reasonable protection to the property in these franchises, by giving them a reasonable extent.
But it is argued, that when the charter of Charles River bridge was extended for thirty years, in the year 1792, notice was given to all the world, by a legislative act, that the proprietors had no exclusive right; and that inasmuch as they took their extended charter, with this notice, it is now too late to set up any such right. The act incorporating the proprietors of the West Boston bridge, was passed on the 9th of March 1792; and in the 8th section of that act, it is enacted, that the proprietors of Charles River bridge shall continue to be a corporation and body politic, for and during the term of seventy years, to be computed from the day that said Charles River bridge was completed and opened for passengers, subject to all the conditions and regulations prescribed in the act, entitled 'an act, incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same during the term of forty years; and during the aforesaid term of seventy years, the said proprietors of Charles River bridge shall any may continue to collect and receive all the toll granted by the aforesaid act for their use and benefit.' There is then a proviso, that the proprietors shall relinquish the additional toll on the Lord's day, and shall continue to pay the annuity to the college, &c.
This extension of the charter of Charles River bridge was made, as set forth in the preamble to the grant. Whereas, the erection of Charles River bridge was a work of hazard and utility, and another bridge in the place proposed for the West Boston bridge, may diminish the emoluments of Charles River bridge, therefore, &c. The notice referred to, is contained in the report of a committee, to whom had been referred the petition for the West Boston bridge, and the remonstrance of Charles River bridge, and is in these words: 'The committee further report, that after attending to the memorial of the proprietors of Charles River bridge, and hearing them fully on the subject, they are of the opinion, that there is no ground to maintain that the act incorporating the proprietors for the purpose of building a bridge from Charlestown to Boston, is an exclusive grant of the right to build over the waters of that river.' Such is the opinion of a committee; and supposing it to have been adopted by the legislature, it would then be the opinion of that body, and nothing more. How, then, can this opinion affect or control the rights of the proprietors, held by them under a former grant? If, instead of being an opinion merely, it had been a declaratery act; still all the rights vested in the proprietors, by their charter of 1785, would have remained in full force and effect; and the charter of 1792 is merely a continuance of the first, with all its rights, &c., and subject to all its obligations. As this declaration of the legislature makes no part of the act of 1792, all the rights which belonged to the proprietors in 1785, belonged to them equally in 1792. If such a declaration had been inserted in the act itself, extending the term to seventy years, and the act had been accepted, the proprietors might have been bound by it.
But the import and meaning of this opinion have been mistaken. It does not deny any claim made by the plaintiffs, but is entirely consistent with it. It does not deny, that the proprietors have an exclusive right between Boston and Charlestown; but does deny, that they have an exclusive right over the whole river. There was a petition before this committee for another bridge; not from Charlestown to Boston, but from Cambridge to Boston; and the committee say to the remonstrants, your exclusive right does not extend to Cambridge, a distance of two miles; it is not an 'exclusive right to build over the waters of Charles river;' but inasmuch as the proposed bridge may affect your emoluments, we recommend an extension of your charter. It was seen, that the proposed bridge would cause a consequential damage to Charles River bridge; and it was on that ground, that the proprietors appealed to the equity of the legislature; and it was on that ground alone, as they expressly declare, that the legislature granted an extension of their charter for thirty years.
In the following cases, an exclusive right in ferries is fully maintained. Churchman v. Tunstal, Hardr. 162; Tripp v. Frank, 4 T. R. 666; Chadwick's Case, 2 Dane's Abr. 683. The case of Huzzey v. Field, recently decided in the exchequer, is reported in 2 Cromp. Messon & Rosc. 432; and also in the 13th No. Law Journal, 239. In this case, Lord ABINGER reviews the whole doctrine in relation to this franchise; beginning with the earliest cases, and confirming all the principles which are necessary to the support of the case at bar. The case of the Islington Market, 2 Cl. & Fin. 513, in which the opinion of the nine judges is given upon a series of questions touching the franchise of a market, put to them by the house of lords, reviews and confirms all the doctrines advanced in support of the plaintiffs' claim in this case; and shows, most conclusively, what the law of England is at this present time. The law there is, essentially and truly, now, what it was three centuries ago, in relation to all these franchises; and unless it can be shown, that this law has been overruled by adjudged cases, or modifed by statute, it is now the law of this country.
Much has been said, in the course of this controversy, of monopolies, and exclusive privileges; and these have been fruitful themes of declamation. And what is a monopoly, but a bad name, given to anything for a bad purpose. Such, certainly, has been the use of the word in its application to this case. It is worth a definition. A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious. It is, then, something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one. But the grant of a franchise is not a monopoly, for it is not part or parcel of a common right. No man has a right to build a bridge over a navigable river, or set up a ferry, without the authority of the state. All these franchises, whether public property or public rights, are the peculiar property of the state. They belong to the sovereign, and when they are granted to individuals or corporations, they are in no sense monopolies; because they are not in derogation of common right.
But it is said, that the legislature has a right, in its discretion, to grant ferries, bridges, turnpikes, and rail-roads, whenever public convenience requires it; and that of this convenience or necessity, they are the exclusive judges. I state the proposition as broadly as it has ever been laid down, because I have no wish to avoid its just consideration. It is admitted, then, that the legislature has a general authority over these subjects; but it is nevertheless a limited authority. It is not omnipotent, like that of the British parliament, but is subjected to many restraints and limitations. A state legislature can do wrong, and has done wrong; and this court has corrected their errors, and restored the rights which had, inadvertently, of course, been invaded or taken away. The people, in forming their constitutions of government, have imposed many restraints upon the exercise of the legislative power. They have inserted in many of their constitutions, certain fundamental principles, which were intended to limit or wholly withdraw them from the power of the legislature. They cannot abridge the liberty of speech or of the press; pass ex post facto laws; suspend the writ of habeas corpus; or take private property for public use, without compensation. These limitations and restraints upon the exercise of legislative power, in Massachusetts, are imposed by its own constitution.
There are restraints imposed by the constitution of the United States upon all state legislation; and one very important restraint, a disregard of of which, in the opinion of the plaintiffs, has brought this cause before this court; is, that no state shall pass any law impairing the obligation of contracts. The power conferred on this court, by the constitution of the United States, of controlling, in certain specific cases, state legislation, has given, and was intended to give, in the language of this court, 'a bill of rights to the people of each state.' The exercise of this ultimate conservative power, constitutes one of the highest functions of this court. The wise men who framed this constitution, clearly discerned, in the multiform operations of human passions and interests, the necessity for some calm controlling power; and in conferring it upon this court, they exhibited the most profound wisdom, guided by human experience.
The legislative power is restrained and limited by the principles of natural justice. In the case of Calder v. Bull, 3 Dall. 388, Judge CHASE says, 'There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof government was established. An act of the legislature, for I cannot call it a law, contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. A few instances will be sufficient to explain what I mean. A law that punishes a citizen for an innocent action, or in other words, which, when done, was in violation of no existing law; a law that destroys or impairs lawful private contracts; a law that makes a man a judge in his own case; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to intrust a legislature with such power; and therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them: the legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all their citizens, in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt, nor punish innocence as a crime; nor violate the right of an antecedent lawful private contract, or the right of private property.'
In the case of Fletcher v. Peck, 6 Cranch 135, the court say, when, then, a law is in its nature a contract; when absolute rights have vested under that contract; a repeal of that law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized, without compensation. To the legislature, all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection.
Regarding the practical operation and effect of the Warren bridge charter upon the rights and property of the plaintiffs, the case at bar comes clearly within the scope of the remarks cited from Dallas and Cranch. In point of fact, it takes the property of the plaintiffs, and gives it to the public. It is, in its operation, an act of confiscation. It violates all those distinctions of right and wrong, of justice and injustice, which lie at the foundation of all law, and of all government; and if men were to deal with each other as this act deals with the plaintiffs, the very frame-work of our civil polity would be broken down; all confidence would be destroyed; and all sense of security for the rights of persons and property would be lost.
Again, the legislative power is restrained and limited by its own former grants. In Chitty's Prerogatives of the Crown, page 132, he says: 'It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges.' The same identical franchise which has been granted to one, cannot be granted to another. The grant of a franchise is as much a grant of property, as a grant of land; and if a grant of a franchise can be resumed or annulled, so can a grant of land. Both are portions of the public property; both vest in the grantees a property, a beneficial interest; and in both, the grant is a contract executed.
Since this suit has been pending, a very important case has been decided in the supreme court of appeals in the state of Maryland. It is the case of the Canal Company v. Railroad Company, 4 Gill & Johns. 1. The canal company's was the prior grant. Surveys of the route for each of these great internal works had been made; and it was found, that they approached so near each other at a place called the Point of Rocks, that there was not room enough for both, between the rocks and the river. In making these surveys, the railroad company had preceded the other company; they had located their route; purchased and condemned the land necessary for their purpose; when their progress was arrested by an injunction, at the instance of the canal company, who found it to be impracticable to construct their canal by the side of the railroad. And the question was, which had the prior right; and the court, in a very elaborate opinion, decided it in favor of the prior grant. This case is before the court, and many of the points discussed and determined in the case, are among the important points to be decided in this.
Within all these distinctions, there was, and always will be, ample room for the legislature to provide every convenience and accommodation that public exigencies may require. And this can be done, without resuming former grants, or taking private property without compensation. They might have seized the plaintiffs' franchise in the exercise of the eminent domain. All the property in the state, under whatever title it may be held, may be thus taken for public use, but upon the simple condition of making a reasonable compensation for it. The legislature, however, did not proceed, in the exercise of this high power, to provide for the public accommodation, but they took the property without paying for it. Or, they might have accepted the offer of the plaintiffs, as set forth in their memorial on the 20th page of the record. By a vote of the proprietors, the corporation offered, if the legislature would give them the necessary authority, to make the avenues to the bridge of any given width; to construct a circular draw, so that passengers should not be delayed, when vessels were passing through; to make the bridge itself as much wider as should be deemed convenient; to construct a spur bridge, and even to build a new bridge; thus submitting the whole matter to the judgment of the legisiature, and pledging themselves to do all and whatsoever they should authorize and direct them to do, in providing for the public accommodation. This offer was declined, and no reasons given; and it is admitted, that they were not absolutely bound to accept it, or to give reasons for their refusal; but it is certainly open to such inferences as the facts of the case will warrant.
But it is repeated, again and again, that the legislature had found the fact, that the convenience of the public required another avenue from Charlestown to Boston. What then? Does the finding of this fact, justify any and all sorts of legislation? Is it any excuse or justification for the resumption of a franchise, for the annihilation of a vast amount of property without compensation? The fact may be made the basis of legislation, but affords no excuse for unjust or unconstitutional legislation. In the case of the Islington Market, before cited, the house of lords found the fact, that public convenience required an enlargement of the old market, or the establishment of a new one. A bill was pending for a new market, and the house of lords, instead of proceeding to pass the act, thought it proper to put a series of questions relating to the matter, to the nine judges; they inquired of the judges, what was the law; what they could do touching this market, consistently with the existing rights of others? The answers are given at large; and if the law, which is there declared to be the law of England, had been applied to the plaintiff's case, when the act establishing the Warren bridge was pending, it never would, and never could, have passed.
But the legislature proceeded to authorize the bridge to be built, and granted a toll, out of which the whole expense was to be paid. Accordingly, the bridge was built, and paid for out of the tolls received. That being done, the functions of the legislature ceased. They had provided another avenue, and paid for it; and there their duty to the public ended. Was it a matter of common convenience, or of public necessity, that the government, after paying for the bridge out of the tolls, should put $20,000 a year into the public treasury, or which is the same thing, give it to the public? Is any man bold enough to vindicate the act upon this ground? With the same right, the government might have repealed the plaintiffs' charter, or passed an act requiring the tolls to be paid into the public treasury. The indirect way in which the franchise has been destroyed, does not alter the principle; for what cannot lawfully be done directly, cannot be done indirectly. The sole basis of the proceeding was, that public convenience required another bridge, and it was justified by its advocates, on this ground alone; the moment, therefore, that the government began to fill its coffers from the tolls, it lost its original character, and assumed a new one. It then became a matter of speculation and profit, and not of public convenience or necessity.
After all, the government have entirely failed to accomplish their only lawful purpose, to wit, providing some further accommodation for the public travel; for there is, at this moment, but one travelled avenue between Boston and Charlestown. Since the Warren bridge was made free, all the travel is over that bridge; to which, if we now add the increase of travel for the last twelve years, and the amount drawn from the other bridges, it will be found, that the travel over this one bridge is nearly double what it ever was over Charles River bridge. Yet the inconveniences and dangers of passing over Charles River bridge, twelve years ago, were so great, that the legislature, out of tender regard for the safety of the people, granted another avenue. Now, though there is nearly twice as much travel over this new avenue, no inconvenience is experienced; and no complaint is made.
The ground upon which the plaintiffs have always rested their cause, was this: that their rights and their duties were commensurate; they have always claimed an exclusive right between Charlestown and Boston; and they have always stood ready to fulfil all the obligations which that right imposed. Such is the law of England, with regard to these franchises, as it is clearly stated in the cases of Tripp v. Frank, Huzzey v. Field, already cited in relation to ferries; and the cases of Prince v. Lewis, 5 Barn. & Cres. 363, and Mosely v. Walker, 7 Ibid. 40, in relation to markets. The memorial of the plaintiffs is founded upon this reciprocity of rights and duties; and all the English cases go upon the principle, that the extent of the one, is the measure of the other.
I do not go into any argument, to prove that the plaintiffs' charter is a contract; but merely refer the court to the following cases. Fletcher v. Peck, 6 Cranch 87; New Jersey v. Wilson, 7 Ibid. 164; Terrett v. Taylor, 9 Cranch 49; 4 Wheat. 516; 8 Ibid. 84; Ibid. 50.
But it is said, that if the legislature of Massachusetts has taken private property for public use, without compensation, the remedy is in the courts of the state. It is possible, that the case here supposed, may happen; although it is not the case at bar. Whatever may be the abuses of legislative power; whatever injuries may be inflicted upon the rights of persons or of property; still, if the obligation of a contract is not impaired, or some one of the specific provisions of the constitution of the United States, imposing restraints and prohibitions upon the states, is not violated, this court has no jurisdiction. 2 Pet. 412-13. If property held under a grant from the state is taken, in the exercise of the eminent domain, provision for compensation is always made in the act: and in such cases, no questions can arise; as the property is taken by a paramount authority and paid for. But if property thus held, is taken, and no compensation is provided, it does give this court jurisdiction; because this grant is declared to be a contract executed; the rights of the grantor are said to be for ever extinguished, and a covenant implied, never to re-assert them. When, therefore, this property thus held, is resumed or destroyed by the grantor; the obligation of the contract is impaired, the implied covenant is broken, and the jurisdiction of this court attaches.
Now, what is the aspect of the case at bar, in relation to this matter? What issues do the pleadings present for the decision of this court? The allegation in the plaintiffs bill is, that the act of 12th March 1828, is repugnant to the constitution of the United States; because it impairs the obligations of a contract. The defendants in their answer deny this; and thus the only issue is formed upon which this court can found a decree. The plaintiffs nowhere affirm, that private property has been taken for public use, by the state, in the exercise of the eminent domain; nor do the defendants allege it, nor do the court below; on the contrary, Chief Justice PARKER says, 7 Pick. 530, that there will be a decree against the plaintiffs, in order that they may avail themselves of the right secured to them by the constitution and laws, of a revision by the supreme court of the United States; where it is highly proper that this question, depending, as I think it does, mainly upon the constitution of the United States, should be ultimately decided.' The decree of the court below also asserts, that no private property has been taken for public use.
It is also apparent, from the act itself, that the legislature did not intend to seize the franchise of the plaintiffs, by virtue of the eminent domain; for they made no provision, in the act, for compensation. Now, it is the settled law of Massachusetts, that in all cases where private property is taken for public use, provision for compensation must be made in the act itself. But in the case at bar, it appears, that the legislature carefully avoided the open and avowed intention of exerting this high power, confided to them by the constitution, by making provision for the compensation, only in cases where real estate should be taken. The constitution says, that where property is taken for public use, compensation shall be made; the legislature say, in this act, that where real estate is taken, compensation shall be made. Now, this franchise of the plaintiffs is not real estate, although it is property; and by this exclusion of the word property, it is most manifest, that the legislature did not intend, and did not, in fact, seize the franchise as private property, for public use. They proceeded on the ground of right to make the grant in question, without compensation; this right is denied, on the ground that it resumes or destroys a former grant, and thus impairs the obligation of a contract. This, then, presents the issue, and the only one of which this court has jurisdiction.
It is admitted, that the right of eminent domain is an incident of sovereignty, and cannot be alienated. And it is also admitted, that all the property of the citizens of the state is liable to the exercise of this paramount authority. No matter by what title it is held, it is all alike subject to be taken for public use. The exercise of this power, however, is restricted by an express provision in the state constitution, that compensation shall be made. This fundamental law is inserted in the constitution of the United States, as well as in that of many of the states; and the following cases show how fully this principle has been recognised and acted upon, by the judicial tribunals of the country. 2 Dall. 304; 9 Cranch 43; 2 Pet. 655; 1 Kent's Com. 425; 2 Johns. Ch. 162; 12 Mass. 468; 7 Ibid. 395.
The doctrine of consequential damages, sometimes referred to in the court below, can have no application to the case at bar; except on the ground that the grant of the Warren bridge does not impair the former grant; or if it does, that the plaintiffs are not entitled to compensation. In making the grant, it is assumed, that the legislature merely granted what was its own; and if the plaintiffs have suffered by the exercise of a lawful power, it is a case of damnum absque injuria, for which the law gives no remedy. This argument, as applied to the case in the court below, by a learned judge, assumes the whole matter in dispute, and need not, therefore, be further pursued; but I would merely ask, whether any case can be found, to which this doctrine has been applied in justification, in which the consequential injury has been not partial and incidential, but total.
It has been often repeated, that the plaintiffs have received more than $1,000,000, in the course of about fifty years; and it is urged, that this is a sufficient consideration for building and maintaining the bridge; and that no injustice is done, by cutting off twenty years of the term. Even a learned judge in the court below, says, that the consideration should be in 'some measure adequate.' And is not a good, a valid, a meritorious consideration, in some measure adequate? Was it not, at the time of the contract, fully adequate? And can one of the parties rescind it now, because it has turned out to be more beneficial than was anticipated by either?
I will not further trespass upon the patience of the court, by showing that an inquiry by a committee of the legislature, is not equivalent to a writ of ad quod damnum executed, which is a judicial process; because I have already shown, that, even such a process, in England, is not conclusive upon the rights of the parties. If, therefore, it were equivalent, it would settle nothing; but it has no resemblance to it, and is not worthy of further notice.
Upon the validity of this act of the 12th of March 1828, this court have now to pronounce a final judgment, which must decide the title to a vast amount of property. This property has been held under a grant from the state, for nearly half a century; it has been bought and sold in open market, under the eye of the government; it has been taken in payment of debts and legacies; distributed in every form, in the settlement of estates, without notice, or even a suspicion, that the title was bad. It has been for many years, sought for as a safe and profitable investment, by guardians, trustees, charitable institutions, and such other persons as are obliged to intrust their property to the management of others, in whom they place confidence. And yet, these owners of this property, who have purchased, or taken it, at its market value, and who have not received more than the legal interest of their money, are represented as odious monopolists, exacting enormous profits upon a capital which has been repaid to them over and over again. The original stockholders are all dead; or, if any of them are still living, the property has long since passed out of their hands; but if they were now living, and holders of this property, they would not have gained more, nor so much, by their purchase, as those who bought real estate at that period, and kept it till the present time. At length, however, the grantor finds that these owners have no good title to this property; and without judicial process or inquiry, confiscates the whole to the use of the public.
But the principles to be established by the judgment of the court, in this case, will decide the title to more than $10,000,000, in the state of Massachusetts alone. If that judgment shall decide, that the legislature of Massachusetts has the constitutional power to pass the act in question; what and where is the security for other corporate property? More than $4,000,000 have been invested in three rail-roads, leading from Boston, under charters granted by the legislature. The title to these franchises is no other, and no better, than that of the plaintiffs. The same means may be employed to accomplish the same ends; and who can say, that the same results will not follow? Popular prejudice may be again appealed to; and popular passions excited, by passionate declamations against tribute money, exclusive privileges, and odious monopolies; and these, under skilful management, may be combined, and brought to bear upon all chartered rights, with a resistless and crushing power. Are we to be told, that these dangers are imaginary? That all these interests may be safely confided to the equity and justice of the legislature? That a just and paternal regard for the rights of property, and the obligations of good faith, will always afford a reasonable protection against oppression or injustice? I answer all such fine sentiments, by holding up the charter of Charles River bridge; once worth half a million of dollars, and now not worth the parchment it is written upon.
I have as much respect for, and confidence in, legislative bodies, as reason and experience will warrant; but I am taught by both, that they are not the safest guardians of private rights. I look to the law; to the administration of the law; and above all, to the supremacy of the law, as it resides in this court, for the protection of the rights of persons and property against all encroachment, by the inadvertent legislation of the states. So long as this court shall continue to exercise this most salutary and highest of all its functions, the whole legislation of the country will be kept within its constitutional sphere of action. The result will be general confidence and general security.
I have thus attempted to satisfy the court, that by virtue of an assignment in equity, or a surrender at law, of an ancient ferry, and the act of 1785, incorporating the plaintiffs, a franchise or beneficial interest was, absolutely, and without condition or reservation, vested in them, for the time limited; and the franchise so vested is recognised as property, and protected as property, both by the law of England and of this country; that, in order to make this protection available, it must, of necessity, have some local extent, sufficient, at least, to keep down ruinous competition; or, in other words, that it must be exclusive between Charlestown and Boston. That the grants of 1785 and 1792, constituting the charter of the plaintiffs, being made on good, valid, adequate and meritorious considerations, are entitled to a liberal construction for the grantees; that these grants, according to the decisions of this court, constitute a contract; that the act of March 12th, 1828, establishing the Warren bridge corporation, impairs the obligation of this contract, by resuming this franchise, and divesting the plaintiffs of this property, without compensation: and that their only remedy is in this court, under the constitution of the United States.
Greenleaf, for the defendants, argued–1st. That the present situation of the cause presented insuperable objections to any decree in favor of the plaintiffs. The Warren bridge, which is the subject of complaint, has now become the property of the commonwealth, by the terms of the original charter. The defendants were merely authorized to indemnify themselves, for the cost of the erection of the bridge, by collecting tolls, for a period not exceeding six years from the commencement. They were afterwards constituted the agents of the commonwealth, by special statues, to receive tolls for its use, two years longer; but those statutes having expired, the bridge has become free.
The general objects of the plaintiffs' bill are, first, to obtain reimbursement of the tolls already diverted from their bridge, and received at the Warren bridge; and secondly, to prevent the use of the latter, as a public way. In the decision of this cause, this court will exercise no larger jurisdiction than was possessed by the supreme judicial court of Massachusetts; and will render no other decree than ought to have been rendered by that tribunal. It is well known, that the people of that state, in the grant of equity powers, have manifested great reluctance, and a decided preference for the common-law remedies; intending to preserve the jurisdiction of the common law, 'in all cases where that is capable of affording substantial and adequate relief.' 6 Pick. 397. Now, for the mere diversion of tolls, there is 'a plain, adequate and complete remedy at law,' by an action on the case; and therefore, by the rules which the courts of that state have prescribed to themselves, there is none in equity. The only ground on which this part of the claim could be sustained in equity, would be, by charging the defendants as trustees. But it has been held in Massachusetts, that the equity powers of the supreme judicial court extend only to cases expressly designated by statute (6 Pick. 395); and that no trusts were cognisable there, except those arising under deeds, and which are expressly declared in writing. Dwight v. Pomeroy, 17 Mass. 327; Safford v. Rantoul, 12 Pick. 233; Given v. Simpson, 5 Greenl. 303.
The only ground, therefore, on which the court can deal with the tolls, is, that having possession of the bill for the purpose of injunction, it may extend its decree over all the incidental equities of the cause. But this court can make no decree which can relieve the complainants, because there are no parties before it capable of obeying an injunction. The bridge having become the property of the state, these defendants have neither right nor power to prevent the use of it as a way. The commonwealth is the only party whose rights are to be affected by whatever decree may be made in regard to the bridge; and no injunction can be issued against one not party to the suit. Fellows v. Fellows, 4 Johns. Ch. 25. The general doctrine of equity is, that all who are necessary to the relief, or are materially interested in the subject-matter, must be joined. Sangosa v. East India Company, 2 Eq. Cas. Abr. 170; Davoue v. Fanning, 4 Johns. Ch. 109; 2 Madd. Ch. 179. It is true, that the interest of other persons, not parties, is no valid objection, where the court can make a decree, as between those already before it, without affecting the rights of those who are not called in. Mallow v. Hinde, 12 Wheat. 193; Ward v. Arredondo, 1 Paine 410. It is also true, that if the absent parties in interest are without the jurisdiction of the court, it will, in some cases, in its discretion, proceed without them; provided their rights are separable from those of the defendants, and will not be irrevocably concluded by the decree. West v. Randall, 2 Mason 190, 196. But if the rights of such absent parties are inseparably connected with those of the parties present, no decree will be made till they are called in. Mitford's Pl. 133, 146; Wiser v. Blachly, 1 Johns. Ch. 437. And this court has declared, that it will not make a final decree upon the merits of a case, unless all the persons, whose interests are essentially affected, are made parties to the suit; though some of those persons are not within the jurisdiction of the court. Russell v. Clarke, 7 Cranch 69, 98. The fact that the absent party in interest is a sovereign state, makes no difference. The language of the court in Osborn v. United States Bank, 9 Wheat. 738, does not apply to a case like the present; but only to that of a public officer who has collected money for the state, which he still holds, and has been notified not to pay over; the constitutionality of the exaction being denied. But however that doctrine might apply to the tolls received, if that subject were cognisable in equity by the supreme judicial court of Massachusetts; it cannot apply to the bridge itself, which is real property, not belonging in equity to these plaintiffs; and is, in no sense, in the hands of the defendants. To retain jurisdiction here, is to sue the state, and virtually to effect a judicial repeal of the constitutional provision on this subject. The court, by its decree, can only affect so much of the bridge as constitutes the nuisance complained of; and this is, not the existence of the bridge, in its present position, but the use of it as a way. Such a decree these defendants cannot execute; and it, therefore, can afford the plaintiffs no relief.
2. The ferry, of which the plaintiffs claim to be assignees, extended no farther than the landing places, and was subject to the control of the state. The policy of Massachusetts, from its first settlement, has been, to retain all ferries within its own control; the ferryman having nothing but a license to take tolls, during the public will. The well-known principles and sentiments of the pilgrims, were strongly opposed to everything in the shape of monopoly. Hence, as early as 1635, after a ferry had been set up by Brown, between Boston and Charlestown, another ferry, as it is termed, but between the same landing places, was ordered to be set up, to be kept by a person, resident in Boston; clearly showing, that in the estimation of the general court, the existing ferryman had no exclusive rights there. In 1641, the limits of all ferries were expressly defined by statute, as extending from the place where the ferry was granted, 'to any other ferry-place, where ferry-boats use to land;' and in the same year, an act was passed, in the nature of a constitutional declaration, that no monopolies should be granted or allowed in in the colony. With this declaration before them, and with such principles in view, the legislature, in 1650, confirmed the ferry-rent to the college; meaning not to repeal the acts of 1641, but to permit the college to receive such tolls as might be collected at the ferry, subject to any further order of the legislature. On the same principles, successive statutes were passed, in 6 Wm. & M.; 8 Wm. III.; 4 Geo. I.; 13 Geo. I.; and 33 Geo. II.; regulating this and other ferries; and authorizing the court of sessions to set up ferries, in any place whatever, at its discretion. If, then, it be true, that the history and situation of a state may be resorted to, in order to expound its legislative intentions, as was said in Preston v. Browder, 1 Wheat. 115; and that charters are to be expounded, as the law was understood, when the charters were granted (2 Inst. 282); it was never the intention of the legislature, in permitting this ferry to be set up, to grant anything more, than the right to run boats from one landing to the other, during its pleasure, and subject to its control. The ferry-right was co-extensive only with the obligations of the boatmen; who were bound, merely to convey from one landing to the other. In the exercise of this right of the state, it has granted toll bridges, at pleasure, in the place of nearly, or quite, every ancient ferry in the commonwealth; to the utter annihilation of the ferry, and without indemnity to the ferrymen. No claim has ever been set up, except by these plaintiffs, adverse to the public right.
The argument, that the ferry franchise extends so far as to put down all injurious competition, is erroneously applied in this case; as it supposes the opening of a new avenue, by the state, to be a mere private competition. The authorities on this subject apply only to a private ferry, set up without license. Yard v. Ford, 2 Saund. 172; Ogden v. Gibbons, 4 Johns. Ch. 160; Stark v. McGowen, 1 Nott & McCord 387; Newburg Turnpike Co. v. Miller, 5 Johns. Ch. 101; Blissett v. Hart, Willes 508. In the present case, the public not being accommodated, the legislature has merely done its duty in providing for the public convenience, which the plaintiffs had not the legal power to do. Mosley v. Walker, 7 Barn. & Cres. 40, 55; Macclesfield v. Pedley, 4 Barn. & Ad. 397.
3. But whatever may have been the extent of the ferry, it never passed to the plaintiffs, but was taken by the state, for public use; and was thereby extinguished, in the paramount rights of the sovereign power, by which it was resumed. 17 Vin. Abr. 83, Prerog. I. b; 4 Ibid. 163; Prerog. X. c. 5; King v. Capper, 5 Price 217; Atty. Gen. v. Marquis of Devonshire, Ibid. 269. The documents in the case negative the idea that the transaction of 1785 amounted to a purchase of the franchise from the college; the object of the tolls being declared to be not only an indemnity to the plaintiffs, but for a revenue to the college. It is no purchase from the college, because the legal evidence, a deed, is wanting. Rex v. North Duffield, 3 M. & S. 247; Peter v. Kendall, 6 Barn. & Cres. 703.
4. Neither the grant of the ferry, whatever it was, nor the plaintiffs' charter, contained anything exclusive of the public right to open a new avenue in the neighborhood of Charles River bridge; for in a public grant, nothing passes by implication. The right thus said to be parted with, is one which is essential to the security and well-being of society; intrusted to the legislature for purposes of government and general good; and such rights are never presumed to be conveyed or restricted. Nothing passes by a charter or legislative grant, except well-known and essential corporate powers, where a corporation is created; unless it is contained in express words. Rex v. Abbott of Reading, 39 Edw. III. 21; 17 Vin. Abr. 136, Prerog. E. c. 5; 8 Hen. IV. 2; Ford & Sheldon's Case, 12 Co. 2; Chancellor, &c. of Cambridge v. Walgrave, Hob. 126; Stanhop v. Bp. of Lincoln, Ibid. 243; Case of Mines, 1 Plowd. 310, 336-7; Case of the Royal Fishery of the Banne, Dav. 149, 157; Case of Customs, Ibid. 45; Atty-Gen. v. Farmen, 2 Lev. 171; Finch's Law 100; Blankley v. Winstanley, 3 T. R. 279; King v. Capper, 5 Price 258; Ibid. 269; Parmeter v. Gibbs, 10 Ibid. 456-7; Stourbridge Canal v. Wheeley, 2 B. & Ad. 792; Leeds & Liverpool Canal v. Hustler, 1 B. & Cres. 424; Dock Co. v. La Marche, 8 Ibid. 42; The Elsebe, 5 Rob. 155, 163; The Joseph, 1 Gallis. 555; Jackson v. Reeves, 3 Caines 303, 306; McMullen v. Charleston, 1 Bay 46-7; Zylstra v. Charleston, Ibid. 382; 2 Cranch 167; Wilkinson v. Leland, 2 Pet. 657; Lansing v. Smith, 4 Wend. 9. The cases where the king's grant has received a construction like a private grant, are all cases of grants of his private property; and not of things held as sovereign, in right of his crown. Upon this ground, the plaintiffs' charter gave them a franchise co-extensive with the bridge itself; it authorized them to erect a bridge, and to take tolls of such persons as might pass over it; but nothing more.
5. If a contract to that effect should be implied, it would be void for want of authority in the legislature to make such a surrender of the right of eminent domain. Every act of a public functionary is merely an exercise of delegated power, intrusted to him by the people, for a specific purpose. The limits of the power delegated to the legislature, are to be sought, not only in the constitution, but in the nature and ends of the power itself, and in the objects of government and civil society. 6 Cranch 135; 3 Dall. 387-8; 1 Bay 62. And the acts of legislators are the acts of the people, only while within the powers conferred upon them. 6 Cranch 133. Among the powers of government, which are essential to the constitution and well-being of civil society, are not only the power of taxation, and of providing for the common defence, but that of providing safe and convenient ways for the public necessity and convenience, and the right of taking private property for public use. All these are essential attributes of sovereignty, without which no community can well exist; and the same necessity requires, that they should always continue unimpaired. They are intrusted to the legislature, to be exercised, not bartered away; and it is indispensable, that each legislature should assemble, with the same measure of sovereign power, that was held by its predecessors. In regard to public property, the power of the legislature to alienate it, is conceded. The limitation now contended for, extends only to those sovereign powers which are deemed essential to the constitution of society. In regard to these, any act of the legislature, disabling itself from the future exercise of its trust for the public good, must be void; being, in substance, a covenant to desert its paramount duty to the people. Such, it is apprehended, would be a covenant not to erect a fortress on a particular tract of land sold; or not to provide ways for the public travel, however great the necessity, either in a particular place, or for a specified time. It is not necessary, that such exclusive contracts be made, in order to induce men to adventure in a new and hazardous undertaking for the public good; for, upon the positive assurance of remuneration, in some other form, capital and enterprise can always be commanded.
The true distinction between those acts of future legislatures which may, and those which may not, be restrained, is conceived to lie, not in the kind particular spot, is a covenant in restraint of special legislation; yet it would manifestly be void. And by a similar enumeration and description of particular places, the right to provide railroads, bridges and canals, in every part of the state, might be alienated to individuals. The example of land exempted from taxation is not to the purpose; such exemption is presumed to be purchased by the payment of a sum in gross, instead of an annual tax, which all are bound to pay. The owner of the land does not buy up a portion of the sovereign power; he only pays off, at once, a debt which was due by instalments. Other examples are given, in the agreement not to charter another bank, and the like. But these contracts do not abridge any powers essential to civil society. The state must be governed and defended; and the people must have facilities for common travel; and to these necessities, the power of each legislature must be adequate. But the existence of a bank is not of similar necessity; it stands wholly upon considerations of policy and convenience.
The existence of some limit to the exercise of powers thus delegated in trust, and their inalienable nature, is no new doctrine; but is familiar to public jurists. Domat, Pub. Law, book 1, tit, 6, § 1, par. 12, 14, 16; Puffend. de Jure Nat. et Gent., lib. 8, cap. 5, § 7; 17 Vin. Abr. Prerog. M. b. pl. 20; Chitty on Prerog. 385; Atty-Gen. v. Burridge, 10 Price 350. The same doctrine has been recognised here, in the case of political corporations. Presbyterian Church v. City of New York, 5 Cow. 538; Goszler v. Georgetown, 6 Wheat. 593; Auburn Academy v. Strong, 1 Hopk. Ch. 278.
6. The grant of the charter of Warren bridge is no breach of any contract with the plaintiffs, they having originally accepted their charter, subject to the paramount right of eminent domain; and having, also, in 1792, accepted its extension, with a distinct submission and assent to an express assertion, on the part of the state, of a right to make new grants, at its discretion. All property held by individuals, is charged with the jus publicum, which belongs to all men. Hale, de Port. Mar. cap. 6; 10 Price 460. One branch of this jus publicum is the right of way, to be designated by the legislature. This is said to be one of the principal things which ought to employ the attention of government, to promote the public welfare and the interests of trade; and that nothing ought to be neglected to render them safe and commodious. Vatt. b. 1, ch. 9, § 101, 103; Domat, b. 1, tit. 8, § 1, 2. The power to do this, is as much inherent and inalienable, as the right of taxation; which, it is said, resides in the government, and need not be reserved expressly, in any grant of property or franchises, to individuals or corporations. Providence Bank v. Billings, 4 Pet. 560, 561, 563. Ferries, turnpikes, railroads, toll bridges and common roads, are equally public ways; differing only in the manner of their creation. Each act of location is an exercise of sovereign power; and the easement thus acquired is paid for by the people; either directly, from the public chest, or indirectly, by tolls. But the laying out of a common road has never been supposed to violate the charter of a neighboring turnpike, however it may impair its tolls; nor has the establishment of one kind of public road, whether by charter or otherwise, ever been considered as an injury, in legal contemplation, to another of a different kind. And if not to another of a different kind, why should it be to another of the same kind? If a turnpike may be rendered useless by a railroad, or a common highway, why not by another turnpike? Beekman v. Saratoga Railroad Co., 3 Paige 45; Irvin v. Turnpike Co., 2 P. & W. 466; Green v. Biddle, 8 Wheat. 88-9. This court has never gone so far as to hold the statute of a state void, as violating its implied contract; the cases to this point are all ones of express contract. Vanhorne v. Dorrance, 2 Dall. 320; Fletcher v. Peck, 6 Cranch 87; New Jersey v. Wilson, 7 Ibid. 164; Terrett v. Taylor, 9 Ibid. 43; Dartmouth College v. Woodward, 4 Wheat. 518; Green v. Biddle, 8 Ibid. 1. On the contrary, this court has refused to imply a contract, in a case similar in principle to the present; and has declared, that where there is no express contract, the remedy of the party was in the wisdom and justice of the legislature. Jackson v. Lamphire, 3 Pet. 289; Providence Bank v. Billings, 4 Ibid. 563; United States v. Arredondo, 6 Ibid. 729.
But this point stands not on general reasoning alone. By stat. 33 Geo. II, the courts of sessions in Massachusetts were expressly authorized to establish ferries, in all places, at their discretion. This is a clear assertion of the public right to make new avenues, by water, wherever public convenience may require; and the statute was in full force in 1785, when the plaintiffs received their charter, and is to be taken into the elements of its exposition. It continued in force, in 1792, when West Boston bridge was chartered; and the same provision was revised and re-enacted in 1797, and continued in force, in 1828, when the charter of Warren bridge was granted. If, then, it was lawful to establish one kind of public avenue, by the side of the plaintiffs' bridge; it was equally lawful to establish any and every kind. If any doubts could arise on this point, it is made clear, by reference to the transactions of 1792. The plaintiffs, at that time, remonstrated against the grant of the charter of West Boston bridge, on the ground of their exclusive right; first, as purchasers of the ferry; and secondly, by their charter of 1785. The whole subject was referred to a committee of the legislature, before whom all parties were fully heard. The great question was, whether the legislature had a right, at its discretion, to make new avenues over Charles river to Boston; and whether the plaintiffs' charter gave them any exclusive privileges. The committee reported strongly in favor of the right of the state, and against the existence of any exclusive right in the plaintiffs; but recommended an extension of the term of continuance of the plaintiffs' charter, on grounds of public expediency, as a mere gratuity; and it was done.
The extension of the charter, together with this contemporaneous exposition, the plaintiffs accepted in the same year; and again in 1802, without protest or objection. It is absurd, to suppose, that the legislature intended to grant exclusive privileges, in the same breath in which their existence was denied. The general principle that the legislative history of the passage of a statute furnishes no rule for its exposition, is admitted. But it applies only to the exposition of statutes as such. Private statutes, regarded as contracts, are to be expounded as contracts; in which all the res gestae, or surrounding circumstances, are to be regarded. The report of the committee, therefore, was a contemporary document between the same parties, relating to the same subject-matter; and in a case between private persons, it would be received, in equity, either to interpret or reform the agreement. If the acts of parties expound their intentions, much more a solemn transaction like this. (Blankley v. Winstanley, 3 T. R. 279; Gape v. Handley, Ibid. 288 note; Hunter v. 15 East 100; Saville v. Robertson, 4 T. R. 720.) Cooke v. Booth, Cowp. 819, asserts the same doctrine, though its application to express covenants has been denied. The charter, extended on these principles, and coupled with such declarations, was accepted by the plaintiffs, in 1802, unconditionally, and without objection. On the application for Canal bridge, in 1807, the plaintiffs again opposed the grant, and were again heard; and the state again denied their exclusive right, and asserted its own, to open avenues at its discretion. And the plaintiffs again, in 1826, in a more solemn manner, accepted the renewed charter; without any denial of the right asserted by the state.
It is objected, that the state, by an act which annihilates the plaintiffs' tolls, has virtually resumed its own grant. To this it is replied, that the principle which forbids the resumption of one's own grant, does not apply to the exercise of the eminent domain. Thus, a turnpike road may be appropriated, to make a canal. Rogers v. Bradshaw, 20 Johns. 735. It is further objected, that though the original outlays may have been reimbursed, with interest, from the tolls; yet that the act of 1828 has ruined the property of subsequent innocent stockholders, who have made their investments at a high price. But all such are purchasers with notice. The statute of 33 Geo. II., was fair notice, beforehand, of the public right to open new avenues, over waters, at discretion. This right, in regard to bridges over Charles river, was expressly asserted in 1792; it was acted upon in the subsequent grant of the Middlesex canal; it was again expressly asserted in 1807, upon the granting of the charter of the canal bridge; and was more recently acted upon in the charter of the Lowell railroad.
7. If the plaintiffs have sustained any damages, not anticipated, nor provided for, they are merely consequential, for which no remedy lies against these defendants; nor is it a case for the interference of this court; but it is only a ground of application to the commonwealth of Massachusetts. That the defendants were mere public agents, in the erection of Warren bridge, was conceded in the argument of this cause, in 6 Pick. 388. And it is equally clear, that the remedy, at common law, for the damages of which the plaintiffs complain, if the act of the defendants were unjustifiable, must have been by an action on the case, and not in trespass. For the gravamen is, not that their property has been directly invaded; but that an act has been done, in another place, in consequence of which the income of that property is reduced; their damages, therefore, are strictly consequential. In regard to such damages, the constitution of Massachusetts, art. 10, has already received an authoritative exposition, in Callender v. Marsh, 1 Pick. 418, deciding, that to those damages, it does not apply. So, in Pennsylvania, Shrunk v. Schuylkill Navigation Company, 14 Serg. & Rawle 71, 83; and in New York, Varick v. New York, 4 Johns. 53. Statutes enabling agents to effect a great and beneficial public object, ought to be benignly and liberally expounded, in favor of those agents. Jerome v. Ross, 7 Johns. Ch. 328. And they, therefore, are held not liable for any consequential damages, resulting from acts done under and within the terms of a statute. Spring v. Russell, 7 Greenl. 273; Custis v. Lane, 3 Munf. 579; Lindsay v. Charleston, 1 Bay 252; Stevens v. Middlesex Canal, 12 Mass. 468; Rogers v. Bradshaw, 20 Johns. 744-5; British Cast Plate Manufacturers v. Meredith, 4 T. R. 794; Sutton v. Clarke, 1 Marsh. 429; S. P. 6 Taunt. 29; 6 Pick. 406. It is only when agents exceed the powers conferred on them by the act, that they become trespassers. Belknap v. Belknap, 2 Johns. Ch. 463; Shand v. Henderson, 2 Dow P. C. 519. If the property is taken for public use, the state is bound to make compensation, and trespass does not lie. If it is consequentially impaired in value, by the prosecution of public works, it is damnum absque injuria, at law; and addresses itself only to the consideration of the legislature.
If here is no violation of contract, the question whether a state law violates a state constitution, is not to be raised in this court. Jackson v. Lamphire, 3 Pet. 289. There are cases, in which it has been gratuitously thrown out, that the constitutional right to trial by jury extends to cases of property taken for public uses. Perry v. Wilson, 7 Mass. 393; Callender v. Marsh, 1 Pick. 418; Vanhorne v. Dorrance, 2 Dall. 304. But each of these cases stood on other grounds; and in neither of them, was this the point necessarily in judgment. In other cases, it has been held, that this constitutional right applies only to issues of fact, in the ordinary course of civil and criminal proceedings. Livingston v. New York, 8 Wend. 85; Beekman v. Saratoga and Schenectady Railroad Company, 3 Paige 45. No state has gone so far as to hold, that the money must be paid, before the title of the owner is divested. On the contrary, in Massachusetts, in the location of roads, the title of the owner is divested, as soon as the return is accepted; though the amount of compensation may be litigated for years. In Kentucky, in certain cases, a private bond is held sufficient to effect a similar purpose (Jackson v. Winn, 4 Litt. 327); and in Pennsylvania, it is effected by the mere giving of a right of action; whether against the state (Evans v. Commonwealth, 2 Serg. & Rawle 441; Commonwealth v. Shepard, 3 P. & W. 509); or against a private corporation. Bertsch v. Lehigh Coal and Navigation Company, 4 Rawle 130. Now, the faith of the state, pledged expressly in its constitution, is at least as valuable as any right of action, whether against an individual, or the state itself; and ought to be equally effectual to divest the title of the owner.
The general principle of public law is, that any private property may be taken for public use, or may be destroyed, or private rights sacrificed, whenever the public good requires it. This eminent domain extends over all the acquisitions of the citizen, and even to his contracts and rights of action. Grotius, de Jure Belli, &c., lib. 2, c. 14, § 7; and lib. 3, c. 19, §§ 7, 14, 15; and c. 20, § 7; Vatt. b. 1, c. 20, § 244; Puffend. de Jure Nat. &c., lib. 8, c. 5, § 7; Bynkershoeck, Quaest. lib. 2, c. 15, ¶2, 3, 6, 10; 3 Dall. 245. All these writers agree, that compensation ought to be made; but no one has intimated that the taking is not lawful, unless the compensation is simultaneously and especially made or provided for. On the contrary, they all suppose, that the property is first taken, and afterwards paid for, when, and as soon as, the public convenience will permit; and this, without regard to the urgency of the cause for which it was taken; nor, whether in war or peace. It is obvious, that in a large proportion of the public exigencies, the compensation must necessarily be provided for, after the property is taken. Commonwealth v. Fisher, 1 P. & W. 465. Our constitutional provisions on this subject, seem nothing more than express recognition of the right to compensation; and were probably inserted, in consequence of the arbitrary impressments of property, made during the war of the revolution. 1 Tucker's Bl. Com. part 1, app'x, 305. The passage in 1 Bl. Com. 138-9, amounts only to this, that the legislature obliges the party to sell, and fixes the price. 4 T.R. 797. But the constitution applies to property directly taken, and not to cases where its value is only consequentially impaired; and so it has been expounded by Massachusetts, in her general road laws, and in all her charters for public ways, whether bridges, roads or canals. The residue of the subject of eminent domain, not having been touched by the constitution, remains among the great principles of public law, having an imperative force on the honor and conscience of the sovereign; and the objection is not to be tolerated, in a court of law, that a sovereign state, in the exercise of this power, will not do what justice and equity may acquire. Tippets v. Walker, 4 Mass. 597; Commonwealth v. Andre, 3 Pick. 224; 2 Dall. 445.
If Massachusetts has taken the property of the plaintiffs for public use, her honor is solemnly pledged, in her constitution, to make adequate compensation. If their rights have been sacrificed, for higher public good, the laws of nations equally bind her to restitution. From these obligations she could not seek to escape, without forfeiting her caste, in this great family of nations. Her conduct in this matter has been uniformly dignified and just. The plaintiffs have never yet met her, except in the attitude of stern and uncompromising defiance. She will listen with great respect, to the opinion and advice of this honorable court; and if her sovereign rights were to be submitted to arbitration, there is, doubtless, no tribunal to whose hands she would more readily confide them. If she has violated any contract with the plaintiffs, let them have ample reparation by a decree. But if not, and they are merely sufferers by the ordinary vicissitudes of human affairs, or by the legitimate exercise of her eminent domain, let it be presumed here, that a sovereign state is capable of a just regard to its own honor, and that it will pursue, towards its own citizens, an enlightened and liberal policy.
Let it not be said, that in the American tribunals, the presumption and intendment of law is, that a state will not redeem its pledges, any further than it is compelled by judicial coercion; that it is incapable of discerning its true interests, or of feeling the force of purely equitable considerations; and that its most solemn engagements are worth little more than the parchment on which they are written. Let such a principle be announced from this place, and it is easy to foresee its demoralizing effects on our own community. But proclaim it to Europe, and we shall hear its reverberations, in tones louder than the thundering echoes of this capitol; with the bitter taunt, that while the unit monarch of the old world, is the dignified representative of national honor, the monarch multitude of the new, is but the very incarnation of perfidy.
Davis, also of counsel for the defendants.–I approach this case with unaffected diffidence and distrust of my capacity to aid my employers, or enlighten the court. It has been long pending; has excited great interest; has drawn to its investigation, the intellect and learning of many distinguished men and eminent jurists. The whole ground has been so thoroughly explored, that little is left untouched which is worthy of examination, or can excite curiosity. If others had not exhausted the subject, my worthy and learned associate has brought such untiring industry into the case, that nothing remains to me, but a method of my own, less perfect than his; and a mere revision of the subject under this arrangement. Both parties are corporations; both created by the state legislature; both claim rights across a navigable river; both, therefore, claim something from the eminent domain of the state. The plaintiffs claim to be first in time, and for that reason, to override the defendants' title. They assert an exclusive right over the river; which greatly affects the public, as well as the defendants. The question to be decided is, therefore, one of grave moment; because it involves great interests and rights in Massachusetts, and possibly, principles which may affect the prosperity and convenience of other densely populated communities.
The value of property on the part of the plaintiffs has been stated, here, to be $500,000. Their bridge, costing originally about $46,000, has grown into this importance, from the large annual income, having yielded to the proprietors, as the plaintiffs state, over $1,200,000; and advanced from 100l. a share, to $2000.
The question in one form is, has the commonwealth so parted with its sovereign right over this river, and vested it in the plaintiffs, that they shall continue these exactions, and the public be without further accommodation, whatever may be the inconveniences, until their charter expires; and for ever after, if the plaintiffs have the right to the ferry, as they contend; for upon their view of the case, the ferry will revert to the college, and the tolls be continued, after the charter of the bridge company expires. If the people of the commonwealth have thus parted with their sovereign rights to corporators, and are thus tied down, so that new ways cannot be opened for their accommodation, it is matter of profound regret.
The learned counsel for the plaintiffs, in opening the case, seemed studious to have it understood by the court, that the actual parties in interest, are the plaintiffs and the commonwealth; and I have no objection to this view of the case; for the public interest, I agree, far transcends in importance the property involved. The public, therefore, may be said to stand on one side, and the plaintiffs on the other. On one side, then, are the rights to private property, sacred and inviolable, so far as they can be established; but claimed in the form of a burdensome tax on the public, and therefore, entitled to no favor beyond strict right. On the other, stands the public, complaining that they are the tributaries to this great stock of private wealth, and subjected to inconveniences still more burdensome, from the want of suitable accommodations for intercommunication across the river, if this bridge is to be shut up; and denying that such claims of exclusive right can be justly or lawfully set up by the plaintiffs. This public, in the argument, has been represented as devoid of natural justice, selfish, avaricious, tyranical.
Some things are certain, in this conflict of opinion. We all know that the sole control and power over this navigable water, was once in the public. It was theirs, and how far have they been divested of it? If it has gone out of the public, and is in the plaintiffs; they must show to what extent, and show it clearly; for such rights, as I shall prove, do not pass by presumption, but upon some decided expression of public assent. The loss of tolls, which has been earnestly dwelt upon, has no tendency to prove it. The great increased value of the bridge, has no tendency to prove it. The severe hardship, which has been a prominent feature of the argument, does not prove it. All these matters are by no means inconsistent with the right to establish other ways across the river; and therefore, only prove that the plaintiffs are making less money, not that their rights are invaded.
I will then examine their allegations in the bill, and the arguments by which they claim to establish their conclusions. I. They set up an exclusive right to the travel between Boston and Charlestown, come from where it may. 2. They aver, that the act of 1828, under which the defendants claim, is incompatible with, and repugnant to, their vested rights, and doth impair the obligations of contract; and is, therefore, void, by the constitution of the United States. 3. They aver that the legislature is restrained from revoking or annulling its own grant, or divesting title, except where it takes property for public use; and then it can only do it under the provisions of the bill of rights of the commonwealth, which requires, that compensation shall be made in such cases; and they further aver, that their property is taken, and no provision for compensation is made, and therefore, the act of 1828 is void.
The case has been chiefly argued under the second and third heads. The first raises a question under the constitution of the United States. That instrument provides in the fifth amended article, that no state shall pass a law impairing the obligation of contracts. The plaintiffs call the act of 1785, under which they claim, a contract; and argue, that the act of 1828 impairs their grant, and as it is done by legislation of the state, the act of 1828 is void. The second raises a question under the tenth article of the bill of rights of Massachusetts; a question very proper for the courts of Massachusetts; but as I shall contend, not brought here by this writ of error; but finally settled there, and beyond the reach of this jurisdiction, as the bill of rights does not, and cannot, constitute any part of the act of 1785, and therefore, is no part of the supposed contract. These two issues do not entirely harmonize in another respect. One denies absolutely the right to take for public use, the property of the plaintiffs, because the state cannot, even in the exercise of its eminent domain, divest this right of property. The other admits the right to take for public use, by making compensation. I shall examine both, and the arguments urged in support of them.
To make out these issues, they contend: 1. That they are the grantees of the college, in and to the ferry between. Boston and Charlestown.
2. That the state authorized the erection of their bridge, by the act of 1785; in which there is an implied covenant not to divert the travel, by new ways. 3. That these two titles vest in them a control over Charles river, to exclude injurious competition, which right they hold to be irrevocable; but if revocable, then the act which authorizes the interference must provide compensation for all loss occasioned by the diversion of travel.
In examining these positions, I shall–1. Deny that they are the grantees of the college, or have any interest in the ferry. 2. I shall deny that they have any covenant or engagement, express or implied, by the act of 1785, authorizing them to claim damages for a diversion of travel by a new and authorized way; and shall also attempt to prove that no legislative body can perpetually alienate its sovereignty in regard to making ways for the public convenience; so that a new way may not, at any time, when the public exigency demands it, be laid over any property whatever, whether belonging to individuals, or to corporations created by legislative acts, and whether it be real estate or a franchise, unless the state has agreed, in express terms, to exempt such property. 3. I shall maintain, that the power to provide ways for the public, resides, of necessity, always, in the commonwealth; is part of the sovereignty; and all property is held subject to the exercise of that right; which is a condition annexed to all title to property, whether derived from the state, or from individuals. 4. I shall maintain, that taking property in pursuance of this sovereign right, is not, in itself, an act impairing the obligation of contracts, but consistent with it; for the property is held subject to this right; and all the party can demand, is compensation, under the bill of rights. 5. I shall maintain, that this court has no jurisdiction over the question of compensation for property taken for a way; unless the party can show that he holds it under the state, and the state has expressly agreed not to take it for that purpose, without providing compensation; for in all other cases, the party relies on our bill of rights, and this court is not the tribunal to expound that instrument.
In maintaining these positions, I am constrained to examine most of the grounds assumed in the very elaborate argument of the opening counsel; though I have a conviction which I cannot surrender, that all this labor upon the ferry will be a useless effort, for the plaintiffs can never succeed in establishing any kind of equitable or legal claim to it. Following, however, the order designated, I will first look to this ferry, and inquire–1. What rights belonged to the ferry? 2. Are these rights vested in the plaintiffs? 3. If they are, do they tend to establish the claim now set up over the waters of the river?
This ferry lies in grant, and we must go to the ancient colonial ordinances, to ascertain its extent, and the probable meaning and intent of the colonial government, which is to be gathered from them. They are as follows:––
Orders relating to Charlestown ferry, extracted out of the old book in the council chamber, Anno 1630. It is further ordered, that whosoever shall first give in his name to Mr. Gouvernour, that he will undertake to set up a ferry between Boston and Charlestown, and shall begin the same, at such time as Mr. Gouvernour shall appoint, shall have one penny for each person, and one penny for every hundred weight of goods he shall so transport. Page 65.
1631. Edward Converse hath undertaken to set up a ferry betwixt Boston and Charlestown, for which he is to have two pence for every single person, and one penny a piece, if there be two or more. Page 80.
1633. Mr. Richard Brown is allowed by the court to keep a ferry over Charles river, against his house, and is to have two pence for every single person he so transports, and one penny a piece, if there be two or more. Page 105.
1635. It is ordered, that there shall be a ferry set up on Boston side, by Windmill Hill, to transport men to Charlestown and Winnesimet, upon the same rates that the ferry-men at Charlestown and Winnesimet transport men to Boston. Page 150.
1637. The ferry between Boston and Charlestown is referred to the governor and treasurer, to let, at forty pounds per annum, beginning the first of the tenth month, and from thence for three years. Page 204.
1638. Edward Converse appearing, was admonished to be more careful of the ferry, and enjoined to man two boats, one to be on the one side, and the other on the other side, except the wind were so high that they were forced to put four men to man one boat, and then one boat to serve, only he is enjoined to pay Mr. Rawson's fine, and so is discharged. Page 223.
1640. Mr. Treasurer, Mr. Samuel Shepherd and Lieut. Sprague have power to let the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion. Page 276.
1640. The ferry between Boston and Charlestown is granted to the college. Page 288.
Such are the principal acts or ordinances of the court of assistants, and the general court, in regard to this ferry; and I shall ask the court to gather the intent of these public functionaries from this record, and the contemporaneous history.
In 1630, the colony, under the distinguished, and I may say, illustrious, John Winthrop, governor, came over; and not being satisfied with Salem, where their predecessors had located, they came up to the head of the bay, or to what is now the harbor of Boston. Here they found the peninsula of Charlestown, formed by Charles river on the west and south-west, and Mystic river on the north-east, projecting into the harbor from the northwest to the south-east; and the peninsula of Boston projecting towards it from the south-west to the north-east, and formed by Charles river on the north and west; which spreads above the point into a large basin, discharging itself between these peninsulas and the bay or harbor of Boston, on the other side. Winthrop, with his friends, occupied these two peninsulas; and in Boston, was established under him, the colonial government of the company, which, in truth, was only a company of adventurers in trade and speculation, so far as the charter went. Out of this humble beginning, has sprung the commonwealth, and, I might almost say, this federal government itself. Thus situated, intercommunication between these two places was indispensable; and hence it is, that while the smokes of only a few log cabins ascended from the spot where a great city and a large town have since risen up, the subject of a ferry came thus early under consideration. And in giving construction to these simple ordinances, it is a fair inquiry, whether the colonists were providing for present emergencies–means suitably adapted to that end; or were, as the plaintiffs, contend, making a perpetual exclusive grant of the right of travel over Charles river, for all time to come.
The first act, in 1630, makes no grant to any one, but proposes to have a ferry 'set up.' In 1631, a ferry was set up by Edward Converse, and the toll established. In 1633, Richard Brown is allowed to keep a ferry over Charles river, against his house, &c. Here is the first evidence of a specific location, 'over the river against his house;' that is, what they call a ferry, was over or across the river, from bank to bank, opposite to Brown's house–a way merely. In 1635, a ferry was set up from Windmill hill, in Boston, to Chelsea; and another from Boston to Charlestown, to run on the same line or way as the one already set up, only it was to belong to Boston, instead of Charlestown. Thus, one ferry was granted upon another; if these ordinances are to be treated as perpetual grants, and if the word ferry carries a franchise, then one franchise upon another. They show rather what is intended by the words set up, and that they simply authorized the running of a boat from place to place. In the first act, any person giving in his name, was to set up a ferry; Converse did set it up. The thing set up, then, was not by public act, but by individual act. This shows the limited sense in which the word ferry is used. After the location, in 1833, it is called the ferry. In 1637, the ferry is referred to the governor and treasurer to let. Mr. Savage testifies, that he had seen the original, or what he believed to be such, of a memorandum of agreement, or lease, in this year, signed by Converse, which begins thus: 'The governor and treasurer, by order of the general court, did demise to Edward Converse, the ferry between Boston and Charlestown, to have the sole transporting of passengers and cattle from one side to the other, for three years,' &c. Now, the demise is of 'the ferry between Boston and Charlestown,' but he is to have the sole transporting, &c. The term ferry, as then understood (for this instrument is in the handwriting of the governor), did not carry any sole or exclusive right to travel and transportation; but it was necessary to insert other strong and express terms, to convey that right. This is another proof that the word had not the enlarged signification now given to it. In 1640, the treasurer, Mr. Sprague and Mr. Shepherd, were authorized to let the ferry. Thus, far, there had been but two kinds of action on the part of the colony; first, to establish a ferry, and second, to lease and regulate it. There were plainly no privileges or exclusive rights appended to it, but they speak of it as a thing to be set up by another; and when leased, they gave for a limited period, certain well-defined privileges to go with it; but those privileges were not embraced in what was called the ferry, but stood separate and distinct from it, and were at an end with the lease. In the same year, 1640, the record says, 'The ferry between Boston and Charlestown is granted to the college.'
This is the charter–the whole title of the college. What, by fair construction, is granted? The ferry–nothing more–the thing set up. No privileges such as are specifically enumerated in the lease of Converse–no line of travel, such as is now claimed–no covenant not to divert travel, or not to establish other ways, or not to impair the income. There is nothing which looks at such privileges. It is a ferry–a naked ferry. What is a ferry? All the books, Tomlin, Dane, Woolrych, Petersdorff, &c., define it to be a highway, and the word, ex vi termini, means no more. The term ferry, therefore, in and of itself, implies no special privileges, such as are often connected with a ferry by special grant or prescription. The colonists so understood it; and in making a charitable gratuity to the college, had no purpose of placing the control of the ferry, or the waters of the river, beyond their reach. The income, they doubtless meant, should go to the college; but they actually retained the possession and management till 1650, and always determined the rate of tolls, and how the public should be accommodated.
The doctrine of ferries, as found in the English books, and applied to this case, is full of confusion and uncertainty; so much so, that the plaintiffs have, under it, varied and remodelled their claims of right; reducing them from the whole river, to the travel between Boston and Charlestown; and before I have done, I shall ask them again, what is the extent of their claim, and where the authority which defines that extent? Let us look at the cases, and see how the doctrine stands.
1. The old class of cases, in which is found the doctrine that 'you cannot impair my franchise or my ferry,' and 'I may exclude all injurious competition;' and which has been many times repeated in the argument, with great apparent approbation; asserts rights which I will show cannot be maintained in England, or anywhere, at this day; the monopoly is too bold for even a government of privileges. There was, therefore, a necessity for narrowing down a doctrine so repugnant to all improvement, and so inconvenient to all who had occasion to travel. The principle was, if one owning an old ferry, could show that a new ferry or way, however remotely, diverted travel, or caused a diminution of tolls, an action would lie, and the new ferry or way was held a nuisance. This gave rise to the doctrine set up in Yard v. Ford, 2 Saund. 172, Blissett v. Hart, Willes 508; and in the case of Sir Oliver Butler, 3 Lev. 320. Here, the distinction was taken, and appears since to have been adhered to, that one setting up a ferry, without license from the king, would be liable for any injury happening to an old ferry thereby; whereas, if he had first obtained a license, he would not have been liable. Those who acted under a license, were placed on a different footing from those who acted without, although the license was procured without paying any compensation to the old ferry. A careful analysis of these cases will produce this result. The conclusion then is, that under a license, granted after an ad quod damnum, a ferry may be continued, though injurious, so far as to entitle the owner of an old ferry to damage, if no license had been granted. The cases of Blissett v. Hart, and Sir O. Butler, fully maintain this conclusion. The ad quod damnum, which gives, of course, no damage, has been manifestly used to evade the rigorous old rule, and to narrow down the franchises of ferries, markets, &c., under a return upon such writs, that new ferries, or new markets may be granted, because the public need them, and the old ones will not be greatly injured thereby. The reporter, in Butler's Case, alleges, that the new market was granted, because the public convenience demanded it. It is, I agree, absurd to return no damage, when there is damage. But if this be not so, why is a license a protection? for if a ferry is, where it does no injury, then it needs no protection. The idea of protection, therefore, necessarily implies, that without the license, the party would be liable, because he does injury. The process of ad quod damnum and license, is, therefore, used as a shield against the liability, and to cut down this kind of franchise.
Next came the doctrine in Tripp v. Frank, 4 T. R. 666, which struck more effectually at the doctrine of the old ferry franchises, and brought them into comparatively circumscribed limits. The plaintiff, claiming all the travel from Kingston to Barton on the Humber, sued the defendant for transporting persons from Kingston to Barrow, some distance below Barton, on the same side of the river. The travel from Kingston to Barrow, had usually passed through Barton, and therefore, went by the plaintiff's ferry. He prescribed and established his right to all the travel between Kingston and Barton; and maintained, that under the old authorities, which forbid the right to set up injurious competition, or to impair the ferry of another, he was entitled to damage; for if the defendant had not transported passengers directly to Barrow, they would have passed over to Barton, in the plaintiff's boats, and therefore, he lost his toll. His line of travel, as it is here called, was broken, and a part of it diverted. But the court nonsuited the plaintiff, on the ground, that he had only an exclusive right between Kingston and Barton. They disregarded the circumstance, that his accustomed travel was lessened, and his tolls diminished. This, therefore, was an unequivocal inroad upon the doctrine, that one shall not set up injurious competition against another, or impair his ferry; for it is undeniable, that the toll was diminished, and the value of the ferry lessened. The franchise which formerly reached all injurious competition, was here limited to an exclusive right between the two towns where the landing places were. This was a most material modification of the old doctrine; and was so considered in a late case in the court of exchequer by Baron PARKE.
The next case of importance, for I pass over many where the learning of the courts has been put in requisition, is a late case in the court of exchequer, reported in 2 Cr. M. & R. 432; and introduced to the notice of the court by the plaintiff's counsel. Here, again, the learned barons took time to advise and consider what the law relating to ferries was. After a fresh research, it is declared, that the franchise consists in an exclusive right between place and place, town and town, ville and ville; and the competition must be brought to bear on these points, or it is lawful. Hence, the defendant was justified in landing a person at Hobbs's Point, a place intermediate between Nayland and Pembroke, though near the latter place, and the passenger was going to Pembroke. This was no infringement of plaintiff's ferry between Nayland and Pembroke. This is the case, as I remember it from a hasty perusal. What are we to gather from it? Would a ferry from London to Southwark, across the Thames, be from place to place, town to town, or ville to ville, so that the vast population on each bank could have no other accommodation? What connection have the arbitrary lines of towns, or cities or parishes, with the public travel or the public accommodation? From one county to another, in most of the United States, is from place to place; for these are the smallest political organized communities in many states. Two counties may stretch up and down a river, upon opposite banks, many miles; and is any ferry to have an exclusive franchise, the whole of the distance, because the two places stretch so far? This, and all the authorities cited, are only so many proofs of a constant struggle on the part of the courts, to ascertain what the franchise of a ferry is in law; and to bring it down to more limited dimensions than the old cases assigned to it. Am I not justified, then, in declaring, that the doctrine is manifestly confused and vacillating; and that the courts, without much seeming ceremony, have modified the law to suit the temper of the times, and to appease the just complaints of the public. But if the law is to undergo change, I prefer it should be in our own courts, and adapted to our condition. Let it be done here, instead of in king's bench, or the exchequer.
This, however, is not the course to pursue, for it furnishes no safe and sound principle to rest upon. It seems to me, if we analyze prescription, on which all these English rights rest, for all the cases of ferries will be found to lie in prescription; we shall find a ground of interpretation of right, which will be satisfactory, and show that these cases have no tendency to establish the doctrine contended for by the plaintiffs. They cite them to prove that a ferry has, as appurtenant to it, a franchise which excludes injurious competition from the waters above and below it. I have already shown, that the term ferry has no such extended signification; and I will now show, that these cases do not conflict with that position, and that they furnish nothing to aid this notion of constructive and implied rights; but every ferry is limited strictly to what is granted, without the aid of implication.
Prescription and grants in writing, differ only in the mode of proof. The writing proves its own contents, and the extent of the grant is gathered from the terms employed to express the meaning. Prescription is allowed to take the place of a writing supposed to be lost. Equity permits the party to produce evidence, to prove what he has claimed, what he has enjoyed, and how long; and if the period of enjoyment be sufficient, the law presumes that he had a writing which has been lost, that would, by its contents, prove a grant co-extensive with the proof. In the case of Tripp v. Frank, for example, the plaintiff proved that he had an exclusive right to transport all travellers passing between Kingston and Barton. The law, therefore, presumed, that if his written title could have been produced in court, it would, in so many words, have given him such an exclusive right. Cases of prescription, therefore, afford no countenance to implied or constructive rights; but stand on precisely the same footing as titles which lie in writing. Usage can never enlarge or diminish title, for one is not obliged to exercise all his rights, to preserve them; nor does usurpation, in theory, enlarge right. The usage only goes to show what the law supposes to have been written. Before, then, the plaintiffs can use these cases of prescription to establish implied franchises, they must show that the lost title is not to be held to be commensurate with the proof; but something is implied, beyond what is supposed to be written. This they will find it difficult to accomplish. It follows, from this, if I am correct in the reasoning adopted, that ferries, eo nomine, have no particular privileges belonging to them. They are what authors define them to be, water highways; and each franchise is more or less extensive, according to the terms of the grant creating it. It may be very limited or very broad. The confusion in the English cases, does not arise from any uncertainty in this principle; but from the uncertainty of proof, where the right lies in prescription.
With these explanations, which I fear have been unnecessarily minute, I come to the inquiry: what was granted to the college? And I answer, the ferry; the same thing set up in 1681, by Converse; the way over the river, againt the house of Brown, established in 1633; a road from bank to bank; for this all a ferry over the river means. It was an accommodation adapted to a few inhabitants in the wilderness. If the franchise was broader, where does it extent to? The terms of the grant indicate no privileges up or down stream. Will the plaintiffs tell us, where their bounds are? Do they know? Is there any rule of implication which assigns them any privileges which they can define? If there is, then, I call on them to put down the boundaries; to show the court the limits. It is not enough, to show that the terms of the grant, if literally and strictly construed, may, under possible circumstances, render their property of little or no value. This only proves they may have made a bad contract, but has no tendency to establish in them undefined and unmeasured rights.
Let it be remembered, that the plaintiffs, in 1792, remonstrated against the grant of West Boston bridge, alleging that it would divert half their tolls; and the opening counsel said, they got compensation for the erection of this bridge, which was from Cambridge Port to Boston. Again, they remonstrated against Canal bridge, alleging it interfered with their franchise, and this ran from Lechmere's Point to Boston. Now they say, their franchise does not reach either of these bridges, but is limited to Boston and Charlestown; and the case of Huzzey v. Field, is quoted to sustain it. This is certainly proof, very conclusive, that the law had been so uncertain, that the plaintiffs have not been able to show the extent of their own rights, as they understand them, or to make uniform claims. Understanding the old cases as I have represented them, they asserted the right to arrest all injurious competition; and as the English courts have cut down the privilege of franchise, from time to time, so their claims have diminished, till they lie between Boston and Charlestown alone.
But it is said, the franchise must be reasonable; and what it reasonable? They deemed it reasonable to assert an exclusive privilege, and to deny the right to open any new ways over the tide-water of Charles river which might divert any travel which would otherwise reach them. Opposition to all new bridges has been deemed reasonable. But why is any enlargement of the grant reasonable? What you give to the ferry, you take from the public; and the public cannot spare it, without inconvenience. In a word, is it reasonable, or right, to traverse the regions of conjecture in this matter? To make laws which shall assign boundaries to this franchise, when the plaintiffs can show no manner of title to what they set up?
They urge that Warren bridge is a clear interference, because it takes away their tolls. So is West Boston and Canal bridges, for the same reason; for the travel would go over the plaintiffs' bridge, if these competitors were away. The proof is no more decisive in the Warren, than in the other bridges. The diversion of travel is not evidence of wrong. The English cases cited, clearly show that; see Tripp v. Frank. The wrong, if any, consists in invading the plaintiffs' grant. And I again ask them, if they affirm, as they do, that we are on it, to point out its bounds. Show us some certain evidence that we are trespassers; you once contended that West Boston bridge would be a nuisance, because it would, as it did, take half your travel; you urged the same argument against Canal bridge, which had the same effect; but you now admit them both to be lawful, because they are not on your franchise. This admission not only proves that you are uninformed as to the rights you claim, but that a great portion of your accustomed travel may be lawfully diverted. I, therefore, again repeat, that the diversion of travel is, of itself, no evidence of a trespass on your rights. You must, therefore, produce some other proof that your franchise reaches our bridge, than the loss of tolls. You do not show it by the terms of the grant, nor by any established rule of construction, which authorizes such an implied right. It is not the business of courts to make or alter contracts, but to interpret them. Is there anything in the words, 'the ferry between Boston and Charlestown is granted to the college,' which looks like granting an exclusive control over Charles river, or any part or portion of it, except the way or line of that ferry? I shall hereafter adduce conclusive proof to show, that in England, contracts of this character are rigidly construed in favor of the public, and against corporators. No countenance is given to implication, beyond what is made manifest by the clearest and most explicit terms. Stourbridge Canal Co. v. Wheeley, 2 Barn. & Ad. 792. The franchise of the ferry, then, which has been interposed against all improvements across Charles river, when brought to the scrutiny of law, will be found to be a very limited right, confined to the path of the boats across the river.
This reasoning is strongly corroborated by the condition of the colony, at the time of the establishment of the ferry, as I have already suggested. As a further proof of public sentiment, the colonists, in 1641, almost simultaneously with the grant to the college, and before it took effect (for the college was not incorporated till 1650), passed an act prohibiting all monopolies, except for inventions. The great and wise policy of Massachusetts, in respect to free highways, was established in 1639; and with modifications, has been continued to this time. Anc. Ch. 126, 267; Laws of Mass. 178, ch. 67. Under these acts, a power to construct free ways has at all times been exercised so largely, that Massachusetts owes to it the best roads that can be found in any state in the Union; and they have, at all times, been established, regardless of turnpikes, bridges, canals, railways or any other improvements. The consequence has been, as is well known, that many of the turnpikes have been abandoned to the public. Such has been the action of public sentiment, and such its results; and this is the first instance in which the right to establish new ways has been questioned.
All these considerations lead to one conclusion, which is, that neither the language of the grant, nor the grant current of public opinion, give any countenance to the claims set up by the plaintiffs, founded on this ferry, for an exclusive franchise extending up and down the river. The late lamented and distinguished chief justice of Massachusetts, in his opinion, in 7 Pick., in this case, expresses his convictions strongly on this point; that the ordinance did not give an exclusive right between the two towns, to the ferry and in construing it, that the contemporaneous history ought to be considered, as it tends to explain the probable intent of the colony.
If, then, the court confine themselves to the language and the existing circumstances, both of the country and the college, at the times of adopting the several ordinances, they will probably arrive at the following conclusions, as distinctly indicated in the case. The colonists meant to establish a ferry, suited to the then emergencies of the country; but not to establish a broad franchise. They needed a public seminary for the education of youth, and found, by the income of this ferry, they could aid this object. They, therefore, meant to secure the revenue of the ferry, as a gratuity to the college, but nothing more. And while they did this, they intended to retain in themselves the unqualified right to control, manage, regulate and govern the ferry at pleasure. To make the income much or little; and to make just such provision for the public travel as they might deem expedient. This is the conclusion which is forced upon the mind, by reading the numerous acts upon the subject. The college was then esteemed the child of the government; and that government manifestly considered itself standing in that relation, with the power to exercise parental authority. Now, what effect the court will give to this state of things, in law, remains to be seen; but there is little difficulty in understanding the actual relation of the parties.
One thing, I apprehend, however, is clear; namely, that neither the ordinances, nor the history, afford any evidence of an intent to create such a franchise as is now claimed. If, therefore, the plaintiffs have this ferry right, it cannot aid their present claims. They grasp at too much–all the river; or if not, they can assign no limits, either by the law or the facts. The public is not to be deprived of its sovereignty over a navigable river, upon such indefinite, uncertain pretensions.
But suppose, we are erroneous in all this reasoning, in regard to the franchise of ferries; then I propose another objection for the solution of the plaintiffs. The doctrine applicable to ferries, belongs to ferries alone, among highways. It is feudal in its origin, and has never been applied to turnpikes, bridges, canals, railways, or any other class of public ways. I have attentively observed the progress of this case, and the learning and laborious research of the plaintiffs brought to its aid. No books, ancient or modern, seem to be left unexplored. Even foreign periodicals, fresh from the press, are on the table; and yet they have shown the court no case where this doctrine which they set up, has been applied to any class of ways, except to ferries. The Chesapeake and Ohio Canal Company v. Baltimore and Ohio Railroad Company, in Gill & Johnson, has been quoted; but surely not for the purpose of showing an exclusive franchise, for these works are allowed to run side by side, actually infringing upon each other, though direct competitors. England is covered with canals, railways, bridges, &c.; but not a case has been adduced, applying this doctrine to them; and the honor of extending a feudal right to such works is saved for the courts here, if it is to be maintained at all. These feudal rights are well known to have originated in the very spirit of cupidity; which aggregated to itself all privileges which increased the mass of wealth in the feudal lords, at the expense of the public. These rights grew up to be law, from the force of circumstances; but it is hardly worth while, at this day, to enlarge such provisions, or to push ourselves ahead of Great Britain, in giving sanction to them. Under this notion of special privileges, the same doctrine extended to mills, markets, &c. Whoever had a market or a mill might keep down injurious competition. We have clearly thrown the law as to markets and mills overboard; for no such privileges exist in Massachusetts: and the doctrine of constructive franchises in ferries ought to follow. It is emphatically the doctrine of privilege against public right; I speak of those vague, indefinite appendants and appurtenants which are said to belong to ferries, by construction and implication; not of what is granted in terms, or by necessary and irresistible implication. This doctrine ought not to be received, unless it is the imperative law of the land, and can be shown to be so, beyond all doubt; and this the plaintiffs have failed to establish.
I come now to a very important inquiry in regard to this ferry. Are the plaintiffs the owners of the right, be it what it may? If they are not, it is a question of no importance, whether the franchise is broad or narrow. The facts here, will, if I do not mistake their character, relieve the court from all embarrassment. I agree with the plaintiffs' counsel, that the commonwealth has the power and the right to take any property for public use; and therefore, also agree with them, that she had a right to take the ferry for the site of a bridge. How could the plaintiffs controvert this proposition, when their bridge is on the ferry ways, and the ferry path under it? But it by no means follows, if the commonwealth had the right to take for the public use a franchise, that she has granted it to the plaintiffs. This must depend on proof. Let us see, what the franchise is claimed to be, and what has been done with it.
It is asserted by the plaintiffs, that the franchise was an exclusive right to transport persons, &c., between Boston and Charlestown. This is an interest issuing from the realty. It is a possessory right, so far as the right to exclude transportation across the river goes; though I am aware that it is incorporeal. I seems to me, therefore, by the laws of Massachusetts that it could only be transferred by deed. Anc. Ch. 18; Laws, 1783, ch. 37. Courts of equity have no power to construe away these provisions. But the plaintiffs have no deed. Again, they have no vote or act of the college corporation, or any of its officers, implying any purpose or thought of conveying this interest. Again, the plaintiffs produce no vote or act of their own, evincing any desire on their part to become the owners of the ferry. The petition for their charter is among the papers, and it does not even name the college; but passing over its head, as not worth regarding, it asks for the right to build a bridge 'in the place where the ferry is now kept.'
There is nothing in the cases to show, that the thought of owning the ferry, ever entered the minds of the petitioners. They had no difficulty in demanding a grant of the ferry-ways themselves, for the site of a bridge, without proposing any compensation for it. Those great and sacred private rights, which now figure so largely in this case, seem to have been no serious obstacle to the introduction of a more convenient way; but a change of interest has, probably, wrought a change of opinion.
There is, then, no evidence of any purpose on the part of the college to sell, or of the plaintiffs to buy; and if the property has been transferred, it has been done, without the act or the assent of either party. This would seem difficult, if not impossible; still, it is strenuously insisted upon, because the act of 1785 requires the plaintiffs to pay out of their tolls 200l. a year to the college. This, it is said, is a good consideration, and draws after it, in equity, the title to the ferry franchise. The conclusion is not apparent from the premises. If being required to pay 200l. a year, makes them the owners of the ferry; then why is not the corporation of West Boston bridge an owner, for they are required to pay 400l. a year to the college? Canal bridge would also come in for a share, as they too, if my memory serves me, were required to pay something. The plaintiffs would probably object to these copartners. But is there any foundation for this pretended consideration? Who has paid it? Let the facts answer! The legislature granted a toll for passing the bridge, so liberal, not to say extravagant, that for an outlay of $46,000, the plaintiffs have received a return of over $1,200,000, as they admit; and their shares, which cost 100l., have been sold for $2000. The 200l. a year have, therefore, been paid by a tax upon the public travel, collected by the plaintiffs, under the authority of the legislature. The tolls appear to have been set very high, to cover this expense, and to give the plaintiffs an early indemnity; as the public might have occasion to make new ways, and diminish the amount of travel. This contingency was doubtless in view, when the rates were established. There can, therefore, be no reasonable ground for saying the plaintiffs have ever paid a cent of compensation. It would be extraordinary, if they, without and conveyance, or any purpose to convey, and without any consideration, could set up a title to a valuable property.
But they suggest further, that the state has conveyed the ferry franchise to them. The act of 1785 will be searched in vain for the intimation of any such purpose. Moreover, the state has no power to take the property of one, and convey it to another. They may condemn so much as is necessary for public use, but nothing more. To test this matter, suppose, the bridge were taken away, can the plaintiffs set up a ferry? I think no one can hesitate what answer to give. They are authorized to maintain a bridge, and no other kind of way. The conclusion of he matter is, that the legislature authorized the plaintiffs to set up a bridge upon the ferry-ways, and took upon themselves to quiet the college, which neither assented or dissented, but relied on the commonwealth, which had always been its great patron and protector, that eventual injustice should not be done to it.
The learned judges, three to one, reached, substantially, this result, in Massachusetts. It is, therefore, plain, that the plaintiffs are not grantees of the ferry, and have not, and never had, any interest therein. The ferry franchise, therefore, whatever it may be, is of no importance to the decision of this case, as the plaintiffs can claim nothing under it. The plaintiffs having failed to show any contract in regard to the ferry, and the legislature having passed no law touching the ferry, for the act of 1828 does not name or allude to it; nothing has been done by the state to impair the obligation of a contract, or to violate the constitution of the United States. The discussion, however, may not be wholly useless, as some principles have been examined, that are applicable to other parts of the case.
I shall now proceed to examine the act of 1785, under which the plaintiffs acquire the right to build the bridge, and all other rights which they have. This act is so barren in those provisions which are necessary for a feudal franchise, that a great effort has been made to build up a claim upon the vague doctrine of ferry rights. Nothing is more reluctantly surrendered than inordinate profits. The provisions of this act are, substantially, as follows: § 1, creates a corporation: § 2, provides for its organization: § 3, gives a toll for forty years: § 4, relates to the dimensions, &c., of the bridge: § 5, gives 200l. a year to the college: These are all the provisions.
They had a right granted for what they asked, namely, to erect a bridge in the place where the ferry was then kept, and to take toll of such as passed over. This is all the franchise provided for in the act; there is not a word about any other rights and exclusive privileges. Nothing restraining the power to make new bridges; no covenant, that there shall be no diminution of travel, or diversion of it; no line of travel guarantied–nothing said of the travel between the two towns; not a word about making compensation, if any of their property should be taken for public use. You will look in vain for any such provisions; and if the plaintiffs have any such rights, growing out of this act, they must be implied, for they are not secured by express stipulations. Here, the question recurs, what is the rule of construction applicable to such acts? I shall ask attention to but one authority: the case of Stourbridge Canal Co. v. Wheeley, 2 Barn. & Ad. 792, to which I have referred. Lord TENTERDEN says: Such an act, that is, an act of parliament incorporating the plaintiffs to make a canal, is a bargain between the public and the adventurers, the terms of which are contained in the act. He affirms, that the rule of construing such acts is well established to be in favor of the public, and against the adventurers; which is exactly opposed to the rule so elaborately laid down by the learned counsel in this case. His lordship distinctly and emphatically declares, that whatever is doubful or ambiguous, or whatever is capable of two constructions, must be construed favorably for the public, and against the adventurers. This case seems to run on all four with the one under consideration, in many of its features–both sets of plaintiffs are corporators, created by acts of legislation; both own ways, and each claims a franchise. The general characteristics are, therefore, alike; and clearly the rules of law applicable to both, and regarding the construction of the charters, ought to be alike; and if so, the plaintiffs can take nothing but what is clearly and distinctly granted to them, either in words, or by plain and necessary inference. The question, then, arises, is it a necessary and irresistible inference, from the terms of this act–a thing so plain as to admit of no doubt–that the legislature did intend to grant to the plaintiffs a roving franchise, to which they can assign no limits; which, in 1792, was above West Boston bridge, but is now limited to Boston and Charlestown? If the plaintiffs cannot give body and shape to the thing to be inferred, if they cannot assign to it limits; in a word, if they cannot tell what it is; how can it be said to be either a plain or a necessary inference? It can neither be the one nor the other; and the very doubt thrown over it, forbids the making of the inference, according to the principles so clearly asserted by Lord TENTERDEN. Implication cannot go beyond what is certain and irresistibly necessary; especially, where an act is capable of an obvious construction, consistent with its general purpose, without such implication. This act is of that character. The legislature granted the right to construct and maintain a bridge, and to take tolls for forty years; but this right of taking toll does not go beyond the privilege of demanding it of such persons as voluntarily pass over. This is all that is guarantied, and these rights have not been touched. Whether another bridge should be erected, so near as to divert the travel, is a matter which they did not bind themselves not to do, but retained in themselves the right to exercise their discretion, as they pleased; in case, in their judgment, the public needed new accommodations. They asserted the right, and diverted nearly half the travel, when West Boston bridge was set up; again, when Canal bridge was set up; again, when Prison Point bridge was set up; and lastly, when Warren bridge was erected.
The commonwealth has, nevertheless, exercised this power sparingly; and only when pressed by strong emergencies. The plaintiffs asked, in their petition, to be indemnified for their expenses, and they have been suffered to go on, until they have been remunerated in a most princely manner. The commonwealth having, at all times, the right to set up interfering bridges, has foreborne to do it, in a most becoming spirit of liberality, and little merits the denunciations now loaded upon her. Such seems to me to be the plain import, and the obvious meaning of the act, and no forced construction or implication is necessary, to ascertain the rights of the parties. The plaintiffs seem to suppose, a diversion of travel is an invasion of their property. This is a mistake. They have no property in travel, for nobody is obliged to travel over their bridge; and they now admit, that bridges may be erected anywhere, except between Boston and Charlestown, however much travel they may divert. They affirm that a grant of toll for forty years means nothing, unless it be absolute and unconditional, securing the travel. Might it not be granted on the express condition that other bridges should be erected, if deemed expedient? Not granting away a power, is equivalent to retaining it; and the legislature never surrendered the right to build new bridges. The plaintiffs have, therefore, enjoyed their privileges, subject to this right. Their tolls have been diminished; but neither by wrong, nor any violation of their rights under the act; nor has any injustice been done to the corporation, as I purpose to prove, before I leave this point.
But they again claim a reasonable construction. Why is not this construction reasonable? The plaintiffs make less money; but are they not indemnified? Would it be more reasonable, to permit them to exact an endless tribute, and to subject the public to other great inconveniencies and delays in their business? What were the large tolls granted for, unless to give a speedy indemnity, that the public might have new accommodations, when needed? What would be the plaintiffs's judgment of what is reasonable? They told you, in 1792, it was an unqualified control over all the ...