Catawba Toll-Bridge Co. v. Flowers

Merrimon, C. J.: The power to provide for and regulate the establishment and use of highways, public bridges and ferries, is vested in the Legislature. The latter, in the exercise of that power, has enacted the general statute (The Code, ch. 50) in respect to “ roads, ferries and bridges,” and many other particular statutes, publicand private,in some instances incorporating toll-bridge, turnpike, ferry and other like companies, with a view to the greater advantage of the public. The plaintiff is such a company, and had the right by virtue of its franchise to construct, use and derive advantage from its bridge, as allowed by its charter and principles of law applicable. In consideration of such rights and privileges granted by the Legislature, it was bound to make its bridge such as the nature of the stream over which it was con *385 structed, required; to make it substantial, safe and convenient, and to keep it always in reasonable repair for the use of the public. If it failed in these respects in a substantial degree, it was indictable, and amenable civilly to any person who suffered injury and damage caused by such default. In consideration of these public advantages, the plaintiff had the exclusive right as against private individuals to carry persons, their carriages, wagons, live stock, and the like, going, passing and repasring ordinarily by that way, over its bridge. The defendants or other private persons had no right officiously to erect another private bridge or ferry across the river named, and thereby take from and divert the patronage that would in the ordinary course of travel, and passing to and fro, go that way, from the plaintiff’s bridge; and this is so whether they took compensation or not for the use of their bridge or ferry. The plaintiff in consideration of the erection of its bridge, its duties and obligation to the public, by its charter is entitled to the benefit of such patronage. Nor is this unjust or unreasonable. The private person may have an indifferent bridge or ferry; he may keep it for a month or two or a year, and abandon it, or allow it to become ruinous and dangerous; the plaintiff is bound by its obligation to the public to keep its bridge continuously safe and in good repair; it owes the public important duties and fails to perfom them at its peril. Hence, if a private person shall so interfere with the plaintiff’s rights, to its injury, it at once has a cause of action against him, and it may sue and recover such damage as it has sustained. Long v. Beard, 3 Murphy, 57; Smith v. Harkins, 3 Iredell Eq., 613; Pipkin v. Wynns, 2 Dev., 402; Taylor v. Railroad, 4 Jones, 277; Carrow v. Toll-Bridge Co., Philips, 118; Barrington v. Ferry Co., 69 N. C., 165; Broadnax v. Baker, 94 N. C., 675. The plaintiff’s charter does not in terms grant it exclusive privileges, nor such exclusive privileges as are above pointed *386 out for any particular specified distance above or below its bridge on the river; nor has it exclusive privileges that at all exclude the exercise of the- power of the Legislature or the County Commissioners, in respect to the establishment of roads, ferries and bridges. The Legislature might by proper enactment authorize the construction of a bridge or ferry near to the plaintiff’s bridge, and so might the County Commissioners, in the exercise of authority conferred upon them by the general statute (The Code, eh. 50). It may be that the County Commissioners ought not, in fairness and in good faith, to exercise such power; still it exists, and the plaintiff has notice of the same. Smith v. Harkins, supra, and Barrington v. Ferry Co., supra; Toll-Bridge Co. v. Commissioners, 81 N. C., 491. Such power ought not to be exercised except for substantial considerations. The instruction of the Court to the jury complained of in respect to the second issue is erroneous. The Court should have told the jury that the plaintiff’s rights were exclusive as against the defendants, unless it should appear that their ferry was in some way established or authorized by law. It appears that it was not authorized by statute or the order of the proper County Commissioners, and the jury found by their verdict that the defendants had not operated it for twenty years. They had no lawful ferry, and hence, have no right by their private ferry to interfere with and divert the plaintiff’s customers from its bridge to its injury. In the absence of any public bridge or ferry other than the plaintiff’s bridge, its exclusive right to patronage as as against the defendants, was not necessarily confined to five miles above and below its bridge on the river; it was entitled to have the custom that in the ordinary course of travel and transportation would go over its bridge. The defendants would be liable to the extent they diverted the same, whether within or without five miles. *387 It seems that the plaintiff and the Court supposed its exclusive right as to distance was governed by the statutory regulation. The Code, §2049. If this were so, we are of the opinion that the words “ within five miles of any ferry on the same river or water, which theretofore may have been appointed,” imply five miles in a direct straight line from the ferrry first appointed. The purpose is to locate ferries at least five miles apart. Streams in many cases are tortuous,very crooked, and the distance of five miles from one ferry by the course of the river might turn out to be a mile or two miles from it by a direct line. The language employed and the nature of the matter leave no doubt in our minds that our interpretation of the provision is a correct one. There is error and the plaintiff is entitled to a new trial. Error.