Hudson v. Cuero Land & Emigration Co.

Moore, Associate Justice. The establishing and maintaining of public bridges and ferries where public roads cross navigable streams, lakes, or bays, and the charging of toll or ferriage for passing or carrying travelers over or across the same, has always been held in this State to be a franchise, subject to the regulation and control of the Legislature, or to the municipal authorities to which it has been committed by the Legislature. (See Paschal’s Dig., arts. 632, 1229, 3841, 3860.) In general, preference is given by statute, in granting [69] such franchise, to the owner of the land on the hank of such stream, lake, or bay, across which a public ferry has been legally established, upon his making due application for the same, and complying with the terms and conditions prescribed by the statutes regulating and authorizing its grant. But this preference is not a matter of absolute right, by reason of riparian ownership, but merely a statutory preference, springing from public policy, and subject to legislative discretion and control. If the privilege of establishing and maintaining a public ferry was a thing of absolute and inherent right in the owner of the land, it could not be said to be a franchise, but would be an easement or corporal hereditament, attached to and dependent upon such riparian ownership. It would be private or individual property, within the protection of the Constitution, and could only be taken or appropriated to public use upon the payment of just, and adequate compensation to the owner. If, on the other hand, as we regard it, the riparian owner has no greater or better right to exercise the franchise of keeping a public ferry than any one else, beyond that growing out of the general laws of the State regulating ferries, he unquestionably has no cause of complaint, if the Legislature sees fit to repeal the statute, or revoke the preference conferred by it upon him. If the franchise or privilege of keeping a public ferry is granted to some one who does not own the land, and it became necessary, to enable such grantee to exercise the franchise for the public good, to use or take the property of the riparian owner; or if thereby any new or different servitude is imposed upon it from that to which it was previously subjected, in furtherance of a public purpose or use,—he would unquestionably be required to make adequate compensation for the same to the owner. Applying these general principles to this case, it must be held, that the Legislature had ample authority, and did, by the special act of May 7, 1873, confer upon appellant and his associates the exclusive franchise, for the length of time and [70] to the extent indicated in said act, of constructing and keeping a pontoon-bridge over the Guadalupe river, at the town of Clinton, in De Witt county. It is said, however, by appellee, that while this act authorizes appellants to erect said bridge across the Guadalupe river, at the town of Clinton, it is ineffectual and nugatory, by reason of the fact that the corporate limits of said town do not extend to the bank of the river, or include the ferry-right in question where such bridge has been placed. To this, it might suffice to say, that no such objection' seems to have been taken in the court below, and therefore but little if any consideration should be given to it here. Aside, however, from the fact that this objection seems to have been an afterthought, it clearly appears from the evidence that a public ferry had existed at the point in question for more than thirty years, which has been generally known and spoken of as the ferry on the Guadalupe river, at the town of Clinton. This is the crossing to which the public roads leading across said river to and from Clinton converged. And in appellee’s application to the County Court for a license to keep a ferry over said river, the locus is also designated as at the town of Clinton, “ at a point immediately above the ferry-site of E. B. Hudson,” &c. It was unquestionably the intent and purpose of the Legislature, in granting to Hudson and his associates the franchise of erecting a pontoon bridge over said river, to secure to the public greater facilities for crossing said stream at said town of Clinton; and in "view of the fact that this was the point where the travel to and from Clinton was accustomed to cross it, and that the ferry at this point had been long known and habitually spoken of as the ferry or place of crossing the Guadalupe river, at the town of Clinton, it appears to us quite evident that it was the point in the mind of the Legislature when said special law was enacted, at which it was contemplated said bridge was to be constructed. It may be said that, although the exclusive right of erect [71] ing a pontoon bridge on said river, within the distance named therein, is given by said special act to appellants, said act does not forbid the licensing of public ferries within any distance of the bridge. We are not disposed to controvert this proposition; and certainly not, if such ferry should be established or authorized by the immediate authority or direct and unequivocal sanction of the Legislature. But in view of the evident object and purpose of this special act, and the great similarity in the privilege of passing the public over a stream by means of a ferry and pontoon bridge, it may, we think, be seriously doubted whether said special act does not operate a pro tanto repeal, or limitation upon the general power conferred by previous statutes upon the County Court to establish ferries. But whether this is its proper construction or not, makes, in our opinion, no difference. For if, as we have said, the riparian proprietor has no absolute and vested right to a ferry franchise, but 9, mere statutory preference, when a public ferry is established, to a license to use and operate it, it certainly cannot be insisted that he may demand, as a matter of right, that a ferry shall be established by the County Court over every stream where this may be properly done, to enable him to avail himself of the privilege given him, by the statute when a ferry is established. In determining whether or not a particular ferry shall be established or maintained, the County Court unquestionably should act with reference to the public interest, and not through regard to mere private or individual benefits. And if the Legislature supposed that the public interest would be promoted (as we must infer it did) by granting appellants the exclusive privilege of having a pontoon bridge over said river, within the limits indicated in the act, we think it cannot be denied that it was within the discretion of the county to say that the public good would not be advanced by establishing a public ferry at the town of Clinton, immediately contiguous to appellants’ bridge. It is also said by appellee, that said special act does not au [72] thoi’ize the condemnation of private property, and as it is the owners of the land on both banks of the river, appellants have no authority or right to erect -their bridge at the point where it has been placed, without and against their consent. It appears, however, from the statement of facts, that a public road and ferry had been established to and across the river, at the point where this bridge is placed, for more than thirty years before the trial of this case in the District Court, and long before the owners of the land were given by statute the preference of keeping the ferry, and before it is shown by the record the State had ever parted with the title to the land. But whether the land belonged to private parties or not, where the ferry was established, and the roads leading to it were originally laid out, the length of time during which the public have been in the exercise of the privilege of a highway across said river, and over said land, is amply sufficient to authorize the presumption that the right to it had been long since granted to or otherwise acquired by the public. It has been heretofore decided by this court, (Jones v.-Keith, 37 Tex., 394,) that the erection, by authority of the Legislature, of a toll-bridge in the highway across the stream, where a ferry had been previously operated by the riparian owner, imposes no new servitude upon the land, and entitles the owner of it to no compensation. If so, appellee has no cause to complain that appellants’ bridge has been erected with the consent of the County Court, in accordance with the intent of the Legislature, in the public highway, even if appellee owns the land to which it is fastened. The decision of the points to which we have adverted necessarily leads to a reversal of the judgment, and obviates, as we think, any necessity for passing upon the objections made by appellants to the testimony offered by appellee to prove its alleged title to the land on the banks of the river, where appellants’ bridge has been erected. 1ÍEVERSED AND REMANDED.