Aikin v. . the Western Railroad Corporation

Selden, J. By the ■ agreement between the plaintiffs and the corporation of the city of Albany, dated Oct. 1, 1852, the latter demise to the former, for the period of twelve years, from the date of said agreement, the “sole and exclusive” right of ferrying across the Hudson, opposite the original four wards' *373 of the city; excepting, however, any right theretofore granted, or which might thereafter he granted-to any railroad company, whose road might terminate on the east side of the river, opposite the said four wards; such rights to be confined to the passengers and freight upon, and the agents and servants of such roads. If, then, the city of Albany possessed the power to convey the exclusive right described in this agreement, that right is now clearly vested in the plaintiffs. The power is claimed: I. Under the Charter of the city, granted by Gov. Dongan in 1686. The language of this Charter is as-follows: After a recital of an existing ferry across the Hudson, from Albany to Greenbush, it proceeds to “give and grant fall power, license and authority to said mayor, aldermen and commonalty, and their successors forever, to establish, appoint, order and direct the establishing, making, laying out, ordering, amending and repairing of All streets and ferries in and throughout the said city, or leading to. the same, necessary, needful and convenient for the inhabitants of the said city and the parts adjacent, and for travelers there.” It is said, that the power conferred by this clause is not exclusive, and does not operate to prevent—even if it would, if exclusive in its terms, prevent—the exercise of a coordinate power by the Legislature. This, however, is a question which it is not important to settle. The plaintiffs rely not merely upon this provision in their charter, but also upon the act of the Legislature, passed in 1826, by which it was enacted and declared, that the charter should “be so construed, as to vest in the said mayor, aldermen and commonalty, the sole and exclusive right of establishing, licensing and regulating all ferries on each side of the Hudson river.,” between Albany and Greenbush. I entirely concur in the position taken by the appellants’ counsel, that the Legislature cannot exercise any judicial power; that it has no authority to construe laws and charters; the power to do this being confided not to the Legislature, but to the judicial branch of the government. But the Legislature may make new grants of power to existing corporations. If *374 full and complete authority over the ferries in question, was not given by the Dongan Charter to the city of Albany, then all the power not so given was reserved to and remained in the Government, and was transferred from the Colonial Governors, or the Crown, to the Legislature of the State. The act in question, therefore, although nugatory as a judicial exposition of the charter, may, nevertheless, operate, as in my view it was intended to operate, as a grant to the city of Albany of any power which might remain in the Legislature over the ferries mentioned in it. I deem it clear, therefore, that either under the original charter, or under that and the act of 1826 together, the corporation of the city had the full, complete and exclusive control of all the ferries within its limits, so far as the Legislature could confer that power. But it is said, that although a ferry, actually established by virtue of a grant, is private property, and the grant itself a contract, yet the mere authority to establish ferries is not a proprietary right, but a political power vested in the Legislature for public purposes alone, and cannot therefore be sold, transferred or made the subject of a contract: that although a portion of this power may be delegated to a municipal corporation, yet like every other power of a political nature, conferred upon such bodies, it may be controlled, resumed or modified at will by the Legislature. Hence, it is argued, that although the act of 1826 was intended to vest in the city of Albany, full and exclusive control over the ferries within its limits, yet it was not in the power of the Legislature to render this authority supreme and paramount to its own; and consequently, that any subsequent act of the Legislature conferring ferry rights is valid, unless it conflicts with rights previously granted by the city of Albany, by virtue of its delegated powers. This argument assumes that neither the Dongan Charter nor the act of 1826 were intended to vest :in the city of Albany any proprietary rights in the ferries within its limits; but merely to confer a certain legislative control, to be exercised by the corporation, as the agents or representatives of the *375 sovereign power. Whether this is a sound exposition of the rights and powers of the city derived from these sources, may well be doubted. Some portion of the language of the act of 1826, seems to me susceptible of a broader interpretation. The words “establishing and regulating,” may with propriety, perhaps, be considered as purely legislative, or as granting power merely and not property; but “ license ” is a word frequently if not generally used in connection with rights of property. It has, I apprehend, been uniformly supposed, both by the Legislature and the corporate authorities of the city, that the latter had a vested right to the revenues to be derived from the ferries in question. But it is unnecessary to pass upon this in the present case. If the corporation possessed, not a franchise, but simply a delegated power, to be exercised as the agent or representative of the Legislature, still the plaintiffs must have obtained by the lease, executed to them in 1852, the “sole and exclusive right ” of ferrying between Albany and Greenbush, except so far as that right may have been impaired or limited by some legislative act. The only act by which it is claimed that the exclusive right supposed to be attached to the ferry in question has been in any manner limited or curtailed, is that passed on the 13th of April, 1840, amending the act incorporating the Albany and West Stockbridge Railroad Company, to the rights of which the defendants have succeeded. The third section of that act is in these words: “ The said company shall have power to construct one or more depots, at some suitable place or places in the city of Albany, and to connect the same with such (then’) railroad, by a single or double track, with suitable turnouts and branches, with the consent and approbation of said city. But no part of this section shall be so construed as to authorize the said company to construct a bridge across the Hudson river, or in any manner to obstruct the navigation of the same.” As this act preceded the plaintiffs’ lease from the city, whatever rights it conferred upon the defendants, or those under *376 whom they claim, were prior and therefore paramount to those of the plaintiffs. The case, therefore, depends in a great measure upon the construction to be given to this- act, and to what has been done under it. Its language is peculiar, and indicates, I think, a design to evade or supersede what were supposed to be the ferry rights of the city. It was intended, no doubt, to enable the railroad company to do precisely what it has done, viz.: To establish a ferry in connection with their road. It is contended by the defendants’ counsel, that the act authorizes the company to connect their depot in Albany, with their road upon the east bank of the river, and hence, that the passage across the river is to be deemed a part of their railroad; and that persons who merely wish to cross the ferry are to be regarded as passengers upon the road, the company having the same right to transport them there as upon any other part of the road. This idea, it will be found, I think, difficult to maintain. The provision in the act, inhibiting the company from constructing a bridge, left them no way of making the connection which it authorized but by means of a ferry, and hence the power to establish a ferry may fairly be inferred. But when established under such a provision, it does not become a railroad. Its nature is not changed. A ferry is not a railroad, nor a railroad a ferry. Both franchises, i. e., the right to construct a railroad and to erect a ferry, may be granted to one corporation, where the grant conflicts with no other rights. But if the right to establish a ferry is conferred upon a railroad company, it does not cease to be a ferry, and become part and parcel of the railroad itself; nor can any language which the Legislature can use in conferring the right, make it such. The two things are in their nature distinct, and cannot be merged. If a ferry may constitute part of a railroad, 'then a Legislature, which has made one exclusive grant of a ferry, and thus parted with the right to establish any other, may nevertheless authorize the construction of a railroad across the river, and under this authority, according to the doctrine contended for, a ferxy *377 boat may be run from side to. side of the river, without infringing upon the ferry previously granted. The fallacy of this is too plain to need further comment. The rights of the defendants are precisely the same as if the power to establish a ferry had .been granted in specific terms. If the ferry rights, derived by the railroad company under the act of 1840, had been absolute and unconditional, it would then have become necessary to determine, whether the city of Albany is possessed of a franchise, or only of a delegated power of legislation. But, as I construe the act, the ferry rights conveyed are made dependent upon the consent and approbation of the city. Those rights result solely from the clause authorizing the company to connect their depot upon one side of the river with their railroad upon the other, which is in these words: “ and to connect the same with such railroad, by a single or double track, with suitable turnouts and branches, with the consent and approbation of said city.” The consent here required, clearly extends to the connection to be made. The words, “to connect,” are the dominant words in the sentence, to which all the rest are subordinate; and there can be no. rule of interpretation which would authorize us to confine the requisite consent to what was to be done upon the land within the bounds of the city. The defendants, then, have no rights of ferriage under the act in question, except such as have received the consent and approbation of the city of Albany. It becomes necessary, therefore, to examine and put a construction upon the contract entered into between the railroad company and the city, on the 23d of April, 1840, as it contains the only consent which is shown on the part of the city corporation. By this contract, the city expressly agrees to give its consent and approbation to the construction of the depots within the city, and to their connection with the railroad, “upon the terms and conditions prescribed in the act.” This might possibly mnfer upon the railroad company an unlimited right of ferriage, were it not qualified by another clause, which is in these words: “And said party of the first part (i. e., the city), *378 further agrees, that no charge shall be made to the said parties of the third part, for the right and privilege, at their own costs and expenses, to carry across the Hudson river at Albany, the passengers and freight transported, or to be transported upon said railroad, or the officers and servants of said party of the third part, or their engines, cars or other property.” It is plainly to be implied, I think, from this clause, that the right of transportation across the river by the railroad company, was intended to be limited to the persons and property named therein. There are many reasons which point to this construction. If any ferry was created or authorized beyond this, it must necessarily be a free ferry. Toll cannot be levied without express authority from the legislature; and the act in question confers no such power. It is not probable that the city intended to consent to the erection of a free ferry for all persons, in direct hostility to the proprietary rights which it claimed under the Dongan Charter. Again, if an unrestricted free ferry was in the contemplation of the parties, there could have been no reason for the specifications contained in the clause quoted. It would in that event have been general, agreeing to make no charge for the transportation of persons or freight of any description. The agreement not to charge, would naturally have been, and no doubt was understood to be, co-extensive with the rights of transportation intended to be conferred. My conclusion, therefore is, that the defendants’ rights of ferrying across the river, derived from the act of 1840 and the subsequent consent of the city, were strictly limited to the transportation of their own servants and agents, and passengers and freight upon their road. It follows, that the defendants, in suffering their boats to be used for the purpose of transportation across the Hudson by persons other than those mentioned, are guilty of an infringement of the ferry rights of the plaintiffs; unless to constitute such an infringement it is necessary that such transportation should be for hire. That the transportation of such outside persons, and their freight, by the railroad company, is in all cases gratuitous, without charge or profit of any kind, was not *379 made a point by the defendants’ counsel upon the argument; but as the Supreme Court appears to have made this, in part at least, the foundation of its judgment, it may be well briefly to consider it. It would seem to be true, as suggested by the Supreme Court, that the right to take toll is essential to every ferry, considered as a franchise; and it may be that any private person might establish a free ferry across a navigable river, where no previous ferry existed, without subjecting himself to a quo warranto, or other prosecution on behalf of the government. The penalty imposed by our act regulating ferries, for the unauthorized transportation of persons or goods across any river or lake, is confined to cases where such transportation is “ for profit or hire.” (1 R. S., 526, § 8.) Until, by the creation of a franchise, there exists some private right to be invaded, the establishment of a free ferry, being a public benefit, might not be obnoxious to any punishment. But the question here is, whether after the establishment of a ferry by one person, under a grant from the government, vesting in him the exclusive right, another person can set up a free ferry by the side of it, without subjecting himself to any liability to the owner of the franchise. The remedy afforded by the law in all such cases proceeds upon the ground that the competing ferrv is a private nuisance; and it is obvious that a free ferry would be productive of far more serious injury to the proprietor of the franchise, than one which charged toll. If where no ferry has been previously granted, one may establish a free ferry with impunity, it is not because he has any legitimate right to do so, but simply for the reason that as no person is injured by his unauthorized act there is no one to complain. But the case is very different where vested rights are invaded. The owner of every ferry franchise is subjected to heavy responsibilities; being bound at all times to keep in readiness the necessary men, boats and other appliances required for the accommodation of the public; and a just reciprocity requires that he should be protected against the wanton destruction of his rights. *380 There is, as from the nature of the case might he expected, very little to be found in the way of authority upon this question. In most if not all the reported cases, where actions have been brought for the infringement of ferry rights, it has been alleged and proved, on the part of the plaintiff, that the transportation by the defendant was for hire. I have seen no case in which a recovery has been sought against one for transporting gratuitously. But the question has arisen in regard to a bridge, between which and a ferry, I can discover, in this respect, no difference. In the case of The Charles River Bridge v. The Warren Bridge (11 Pet., 420), the plaintiffs made it a part of the gravamen of their bill, that the Warren Bridge was shortly to become free; and this did in fact occur before the argument of the cause in the Supreme Court. The question as to the effect of a free bridge upon the plaintiffs’ rights was not directly passed upon, but it is easy to collect, from the remarks of both court and counsel, that the circumstance that the bridge was free was regarded on all hands as strengthening the plaintiffs’ case. They failed in their suit, not because the Warren Bridge was free, but because their charter gave them no exclusive rights; and the court held that as against the public such rights could not be implied. Mr. Webster, who argued for the plaintiffs, stated a case, where certain persons in Boston being about to erect a free bridge, which would interfere with the West Boston Toll Bridge, purchased the latter bridge, upon the assumption that their free bridge would be an infringement. (11 Pet, 516.) Judge McLean, also, in giving his opinion at page 568, stated, that in extending the National Road through Ohio, “a free bridge was thrown across a stream by the side of a toll bridge, which had some ten or fifteen years of its charter to run.” It was contended that the owner of the toll bridge was not entitled to compensation; and the public authorities in the first instance so decided; but afterwards reversed this decision and awarded an indemnity. These cases were not cited to prove that a free bridge would be as objectionable as a toll bridge, for that was not doubted, but *381 as bearing upon the extent of the plaintiffs’ rights under their charter. They are, however, as available for the former purpose as the latter, and although they have not the weight of judicial decisions, they nevertheless serve to show how this question has been regarded by high public functionaries, and by persons acting, no doubt advisedly, in reference to important interests. That the circumstance that the Warren bridge was free, was considered as an aggravation of the injury, is obvious, from a remark of Judge Taney, at page 549. In speaking of the plaintiffs’ bridge, he says: “ But its income is destroyed by the Warren bridge, which being free draws off the passengers and property which would have gone over it, and renders their franchise of no value. This is the gist of the complaint.” When we consider the nature of The Charles Biver Bridge case, and. the manner in which it was contested, the fact that no suggestion was made, either by court or counsel, that the circumstance that the Warren bridge was free afforded any ground of defence, makes the case one of decisive weight upon the question. There can be no doubt that the law on this subject is in accordance with the plain demands of justice, and that it affords a remedy against one, who, without profit to himself, invades his neighbor’s franchise, no less than against one whose aggression is stimulated by the hope of reward. It may still be said, that the transportation by the defendants of which the plaintiffs complain, is the mere involuntary incident of their legitimate business; that they have established no ferry but such as the law authorizes, and that they are not bound to incur extra trouble and expense, to prevent persons other than those they have a right to transport, from coming uninvited upon their boats. This defence, however, is not available. Every person is bound to exercise his own rights with due regard to the rights of others. If a person in carrying on any lawful business, as for instance smelting lead upon his own premises, creates a nuisance to his neighbor, he must either discontinue his ‘business, or be at the expense, no matter how great, necessary to prevent the nuisance. Instances of this kind are numerous, and it is unnecessary to specify them. *382 ■ The present case may be illustrated, by comparing it with' that of the Auburn and Cato Plankroad Company v. Douglass (5 Seld., 444). In that case it was held that the plaintiffs were not entitled to relief, because they had no right whatever beyond the limits of their road. Their charter having given them in terms no exclusive privileges, nor any rights as against adjoining proprietors, it was held that no such rights could be taken by implication. Their franchise was limited to obtaining the right of way for their road, laying down their plank, and erecting toll-gates thereon; and with this, the acts of the defendant did not interfere. Here the case is very different. The plaintiffs’ ferry rights, except as they are modified by those specifically granted to the defendants, are exclusive of all others; and are co-extensive with that part of the. river which is opposite the four wards of the city. The defendants carry on all their' ferry operations entirely within the territorial limits of the plaintiffs’ franchise; their, specific rights are in a manner carved out of the more general rights of the plaintiffs, and every instance of the ferrying across of persons other-than those whom the defendants have a right to transport, is a direct aggression upon the rights expressly conferred upon the plaintiffs.. It is doing what .the plaintiffs are in terms authorized to do, and what they have a right to preclude any other persons from doing. The maxim sic utere tuo, &c., is frequently misap-' plied, but this is a case to which it has a direct application. A man may conduct his own business in his own way, whatever damage may result to'his neighbor, provided no legal right of the latter is invaded. But he must so manage his affairs, at whatever cost, as not directly to infringe any right or privilege conferred by law upon another, or he is responsible for the consequences. It is said to be impossible for the defendants to discriminate, as they take no toll from their passengers, between those they have and those they have not a right to transport. I apprehend, however, that there would be no great practical difficulty, if the defendants are desirous of doing so, in devising, in con *383 cert -with the plaintiffs, some mode by which the legitimate rights of the latter can be to a reasonable degree protected. The judgment of the Supreme Court should be reversed, and a judgment should be rendered for the plaintiffs, pursuant to the prayer of their complaint, the details of which should be settled by one of the judges of this court upon notice to the parties. Johnson, Ch. J., Denio, Allen, Gray and Grover, Js., concurred.