Parrot v. Lawrence

DILLON, Circuit Judge. The grant to the bridge company by its charter is “the exclusive right and privilege of building and maintaining a bridge across the Kansas river at the city of Lawrence.” and “to establish and collect tolls for crossing said bridge.” If tiiis right has not been invaded, the complainant is not entitled to an injunction against the running of the ferry. I say the ferry, for, in my judgment, it is clear that the means used to cross the river by the defendant, Wilson — viz.: a flat-bottomed boat, connected with cables spanning the stream, and moved or propelled back and forth across it by power supplied by a stationary engine on the bank — is a ferry, as distinguished from a bridge, both under the legislation of the state and according to the usual meaning of the word. The passage over streams is generally effected in one of two ways, viz: by bridges, which, as commonly constructed for the use of travelers and teams, are immovable structures or extentions of the highways over and across the water; and by boats, which are movable and propelled by steam-power, horse-power, the action of the current, or similar agencies. When the passage is by the latter mode it is called ferrying, which implies a boat that moves back and forth across the stream, from bank to bank. The legislation of Kansas everywhere recognizes this distinction between bridges and ferries. In the statutes of 1855 there are provisions for building bridges (chapter 18), and also for regulating femes (chapter 71). At the first session of the legislature, in 1S53, there were a great many special acts, some authorizing certain persons to build toll bridges, and others to establish and maintain ferries. Among these numerous acts was one giving to John Baldwin the exclusive right to keep a public ferry across the Kansas river at the town of Lawrence for the period of fifteen years. Two years afterwards the legislature incorporated the Lawrence Bridge Company, giving it the exclusive right to build and maintain a bridge across the river at the same place. Did this invade the franchise which had been granted to Baldwin? Clearly not, for the two grants are different; the one was to keep a ferry and collect tolls or ferriage for crossing the stream by this mode —the other was ro erect and maintain a bridge, Ac., “to collect tolls for crossing the same.” So that during the period for which Baldwin’s ferry charter was to run. there were two modes of crossing the river at Lawrence expressly authorized — the one by means of Baldwin’s ferry, the other by means of the bridge of the Lawrence Bridge Company. The contract of the legislature with the bridge company must be protected from subsequent invasion. But what was that contract? It was simply an exclusive right to build a bridge and to “collect tolls for crossing the same.” It is argued that the contract with the bridge company was that the travel of a certain district, to-wir: those passing the river at Lawrence should pass over this bridge and pay tolls therefor. But it is clear that, such was not the contract: 1st, because it is not so expressed, or fairly to be implied from the language used; and, 2d, be [1236] cause the existence of the Baldwin ferry charter, which must he presumed to have been in the mind of the legislature when it passed the bridge charter, and which, by its terms, would continue in force many years after the period fixed for the completion of the bridge, shows that the legislature did not intend to make a contract with the bridge company to the effect that all persons and property crossing at Lawrence should pass over the bridge. "When we consider that legislative grants creating monopolies, while they are not to be cut down by hostile or strained constructions, are nevertheless not to be enlarged beyond the fair meaning of the language used (Binghamton Bridge Case, 3 Wall. [70 U. S.] 74), this conclusion seems, to my mind, so clear as not to admit of fair doubt. It has been settled by adjudication that the exclusive right to a toll bridge is not infringed by the erection of an ordinary railroad bridge within the limits over which the exclusive right extended (Mohawk Bridge Co. v. Railroad Co., 6 Paige, 564; Bridge Proprietors v. Hoboken Co., 1 Wall. [68 U. S.] 116, 150, and cases cited); and the reasoning upon which this conclusion rests shows that where the charter of the bridge company is silent upon the subject, its exclusive right would not be invaded by the establishment, under legislative authority, of a public ferry, although this would have the incidental effect to injure the value of the franchise of the bridge company. That this is the opinion of the presiding justice of this court is plain from an expression to that effect, by way of argument, in his opinion in the Hoboken Bridge Case, 1 Wall. [68 U. S.] 116, 149. In that case the legislature of New Jersey, in 1790, authorized the making of a contract with certain persons for the building of a bridge over the Hackensack river, and by the same statute enacted that it should not be lawful for any person to erect “any other bridge over or across the said river for ninety-nine years;” and it was held that the railroad bridge subsequently authorized, which was so constructed as that persons or property could not pass over it except in railway cars, did not impair the legal rights of the bridge proprietors. Mr. Justice Miller, in discussing the question as to what was the meaning of the act of 1790 and the contract with the persons who built the bridge, says: “There ,is no doubt that it was the intention of those who framed those two documents to confer on the persons now represented by the plaintiffs some exclusive privileges for ninety-nine years. If we can arrive at a clear and precise idea what that privilege is, we shall perhaps be enabled to decide whether the erection proposed by the defendants will infringe it. In the first place, it is not an exclusive right to transport passengers and property over the Hackensack and Pas-saic rivers, for there is no prohibition of ferries, nor is it pretended that they would violate the contract." [Bridge Proprietors v. Hoboken Co.] 1 Wall. [68 U. S.] 149. In conclusion I may remark, that I have considered the very ingenious argument made by the complainant’s counsel to show that the mode adopted by the defendants for transporting persons and property across the river is not a ferry, but a flying bridge, or a floating bridge, and hence it is a violation of the franchise of the bridge company. But the single boat which is made to cross the river by)»team-power is not iu my judgment, a bridge'of any kind, and certainly not a bridge within the meaning of legislation of the state of Kansas on the subject of bridges and ferries. It is argued, and perhaps with correctness, that the city of Lawrence transcended her powers.ia purchasing boats and in assisting Wilson to maintain his ferry under his license from the county authorities. But if this be granted, it falls far short of showing that the complainant is entitled, in consequence, to an injunction to prevent Wilson from running his ferry under his license. Injunction dissolved. As to the powers of municipal corporations with respect to ferries, see Dill. Mun. Corp. §§ 31, 78, 79, and eases there cited.