Opinion
12-09-1850
SOMERVILLE v. WIMBISH.
Stanard and Macfarland, for the appellant. Robinson and Patton, for the appellees.
(Absent Cabell, P. Brooke, J.)
1. The Code, ch. 51, § 1, p. 660, provides that an appellate Court shall take judicial notice of private or local acts, that appear to have been relied on in the Court below. The judicial notice to be taken of such a law, is the same that is to be given to laws of a general or public nature, and has reference to the hearing of the cause in the appellate forum, whether decided in the Courts below, before or after the commencement of the revised statute.
2. A ferry franchise in Virginia is the creature of the statute law; and the rights of the owner of the franchise are to be measured by the statute.
3. Though a ferry has been established for any length of time across a river, it is competent for the Legislature to establish another ferry from the opposite side of the river, to pass along the same line used by the first: and this is no invasion of the franchise of the owner of the first ferry.
4. The establishment of such a ferry confers upon the owner no title to any portion of the soil on the other side of the stream, and no easement there, beyond the incidental delegation of such as has been theretofore, or may thereafter be, acquired by the public as a highway.
5. Quœ re: If in such a case, the ferry franchise will carry with it the privilege of using any public roads on the opposite land, for the purpose of landing or taking in passengers.
6. The order of the County court directing the justices to be summoned to consider of the verdict of the jury, in ferry cases, may be executed by leaving a notice in the mode directed in the general law in relation to notices.
7. A person who signed a memorial to the Legislature for the establishment of a ferry is not thereby rendered incompetent to act on the jury.
In 1762, a public ferry across the Roanoke river, was established from the lands of William Harwood in the then county of Lunenburg, to the lands of William Royster in the same county. This ferry was subsequently the property of David Ross; and at present belongs to James Somerville. It has been kept up for many years, except perhaps for a short period, between 1794 and 1804, whilst it was in the hands of Ross. It is located on the north side of the river on the lands of Somerville, through whose lands a road runs to the ferry landing; and it passes to the land formerly belonging to Royster, at the town of Clarksville, in the county of Mecklenburg.
There seems also to have been a ferry as early as 1770, from the lands of William Royster, on the south side of the Roanoke river, to the landing which is now Somerville's on the north side of the river. This ferry seems to have been kept up, except for a time when Clarke Royster lost his ferryman, until about 1825, when it was rented by Somerville, and permitted to go down. He continued to rent Royster's landing until 1847, when Clarke Royster died.
In December 1847, William Townes, the executor of Clarke Royster, sold, and in July 1848 conveyed, to John and Lewis W. Wimbish, the lot of land described in the deed as " lying on the south bank of Roanoke river, adjoining the town of Clarksville," " and containing between one and two acres, on which is located the ferry landing known as Somerville's ferry." And in March 1848, the General Assembly of Virginia, upon the petition of the Wimbishs and of a large number of the citizens of Mecklenburg, passed an act entitled, " an act to revive the ferry at Clarksville, in the county of Mecklenburg, formerly known as Royster's ferry across Roanoke river." This act authorized the Wimbishs, upon giving twenty days notice at the door of the courthouse, and also giving reasonable notice in writing, to the owners of all lands which would be affected by the establishment of said ferry, to apply to the County court of Mecklenburg, which was directed to have a jury empanneled to enquire and report whether public convenience would result from the establishment of the ferry; and upon their report, as well as any other evidence which might be offered, the Court was authorized to establish it. And the act further provided, that all the acting magistrates of the county should be summoned to consider of the verdict of the jury and the application; and if a majority of the justices, being duly summoned, should fail to attend, the Court then present, or any subsequent Court, should have power to act on the application. This act was not copied into the record; nor does it appear to have been made a part thereof, unless by reference to it in the first order of the Court.
At the June term 1848, of the County court of Mecklenburg, an order was made, which said, on motion of John and Lewis W. Wimbish, who desire to establish a ferry in this county across Roanoke river, from their lands on the south side of said river, in the town of Clarksville, to the lands of James Somerville, on the north side of the said river. And it appearing to the satisfaction of the Court, that the said John and Lewis W. Wimbish have complied with the provisions of the act of the General Assembly entitled, " an act to revive the ferry at Clarksville, in the county of Mecklenburg, formerly known as Royster's ferry, across Roanoke river," passed March 23, 1848, and given notice to James Somerville, and posted notice, & c. The order then proceeded to direct the sheriff to empannel a jury for the purposes directed in the act, and also, to direct the sheriff to summon all of the acting justices to attend at the next term of the Court, to consider of the verdict of the jury, and of the application to establish the said ferry. The notice to Somerville, described the route of the ferry, as going from their landing on the Roanoke river, at Clarksburg, formerly known as Royster's landing, to the opposite side of the river, at Somerville's landing or ferry.
The sheriff proceeded to empannel the jury, and they rendered their verdict, that in their opinion public convenience would result from the establishment of the ferry; and this verdict was returned by the sheriff to the July term of the Court. All the justices of the county not having been summoned to this term of the Court, another order was made directing them to be summoned to the next term.
On the return of the summons of the justices, James Somerville made himself a party defendant to the motion, and opposed the application for the ferry; and the case having been continued until the October term of the Court, came on then to be tried, when Somerville moved to quash the verdict of the jury in the case, on the ground that the Wimbishs in their application to the Court, did not set out that a public road had been established through their lands, or any other lands to the place where the said ferry was sought to be established. But the Court overruled the motion, and Somerville excepted.
Somerville further moved to quash the proceedings in the cause, on the ground that all the acting justices of the county had not been summoned to consider of the verdict. The ground of this objection was that as to two of the justices, the return of the sheriff was that copies of the summons had been left for them; and the proof by the sheriff was that copies were left at their respective places of abode more than ten days before the Court to which the summons was returnable, they being from home, and the sheriff not being able to find them. The Court overruled this motion, and Somerville again excepted.
Somerville further moved the Court to quash the verdict, on the ground that two of the jurors had signed the petition which had been presented to the General Assembly for the establishment of the ferry then applied for by the Wimbishs. But the Court refused to quash the verdict, and Somerville again excepted.
Upon hearing the evidence the Court established the ferry; and upon this judgment Somerville appealed to the Circuit court of Mecklenburg.
At the October term of the Circuit court the cause came on to be heard, when a large mass of testimony was taken as to the mode in which Somerville's ferry had been kept; and upon the question whether the public convenience would be promoted by the establishment of the ferry asked for by John and Lewis W. Wimbish. On this point the Court below and this Court concurred in the opinion that the establishment of the ferry would promote the convenience of the public: And at the May term 1850, the Circuit court affirmed the judgment of the County court. Whereupon Somerville applied to this Court for a supersedeas, which was awarded.
Stanard and Macfarland, for the appellant.
1 Hen. St. 156, shews that the ferry from the lands of Ross to that of Royster was then established. There has been some effort to prove that there was a ferry from the land of Royster to that of Ross; but the proof of the existence of such a ferry is very meagre; and it is certain that if Royster ever did use such a ferry he had no authority for it: No statute or any other act by any power authorized to grant it can be produced; and if it was used it must be presumed to have been used in subordination to the rights of the owners of Ross's ferry. But further, it appears that the ferry ceased to be used in the lifetime of William Royster, and by the act 2 Rev. Code, ch. 237, § 23, p. 260, even a legally established ferry under the circumstances proved in this case, would have been discontinued. That act fixes two years as a discontinuance; and this is a provision much older than the act of 1819.
Here then is a case in which the appellant is the owner of the only legally established ferry at the place, and in which there has been no other ferry there for many years: and the question is, what are the rights of a ferry owner by the common law; and what were his rights under our statutes when this new ferry was established? In considering this question, we shall treat the act of 1848 as a public act, or as a private act which has been given in evidence on the hearing of the cause.
What then, under these circumstances, were the rights of Somerville? He was entitled to a ferry franchise. And this franchise was not limited to the mere right of transporting passengers and freight across the river; but it was exclusive within such reasonable limits as would protect him from ruinous competition. Charles river bridge v. Warren bridge, 11 Peters' R. 420, 620; Huzzy v. Field, 2 Cromp. Mees. & Ros. 432. In the first of these cases these principles of the common law in relation to ferries are recognized in their full extent by Judges Story, Thompson and M'Lean. The majority of the Court did not controvert the doctrines of the dissenting Judges as to the common law; but held that the Charles river bridge had not acquired any ferry rights; and if the Charles river bridge had acquired the rights, the act establishing the second ferry, though it took away vested rights, did not impair the obligation of contracts; and therefore the Supreme court of the United States had no jurisdiction to decide upon it.
In Virginia, then, a party owning a ferry has the common law rights appertaining thereto, except so far as they are modified by our statutes. The two acts 2 Rev. Code, p. 241 and 261, are the only general statutes on the subject: And the act of 1840, Sess. Acts 1839-40, is the only other act which it is necessary to notice. This act prohibits a ferry within a mile of an established ferry. These statutes certainly do not impair the common law rights of the ferry owner; but confirm and protect them against the establishment by the County court of another ferry within the prescribed distance, even with compensation to the owner of the existing ferry.
It may be said that our legislation recognizes the right to establish ferries opposite to existing ferries. It is true that there was such a provision in the act of 1792; but there was no such provision in the act of 1819; and the act of 1840 so far from giving to the County court the authority to establish such a ferry, expressly prohibits it.
There is nothing then in our legislation to impair the common law rights of the ferry owner. And if we are correct in this conclusion, it follows as a consequence, that if it was the intent of the act of 1848 to withdraw from the owner of this ferry the rights he had so long held under the common and statute law; and to authorize these appellees to appropriate his property without compensation, then it was unconstitutional. This, however, was not the intent of the act of 1848, as is obvious from the language and provisions of the statute. The language is permissive, not imperative, and all parties interested are to have notice of the application, obviously to enable the owners of the land in question to shew to what extent the value of their lands will be affected by the establishment of the ferry, and to obtain compensation for the injury. No compensation however has been given to Somerville; and the case must therefore turn upon the question whether the rights conferred upon the appellees by the judgment of the Court below, does so injure Somerville as to entitle him to compensation therefor.
The judgment of the Court below gives in the most general and comprehensive terms a ferry from the landing of the Wimbishs to the lands of Somerville; and under this order the Wimbishs are entitled to land anywhere on the lands of Somerville. If it be said that this was not intended by the Court, we can only say that their rights are only to be ascertained by the judgment itself. It may be that they asked for the ferry to a certain point and that the Court has given them more than they asked for; but they have not had the judgment corrected, and must therefore be considered to have accepted all that is given by it. The judgment then must be regarded as establishing a ferry to any or every point on the lands of Somerville; and the question is whether such a judgment can be sustained.
A ferry right includes the right to pass from the boat to the land. If this right to land from the boat is not included in the ferry right, a ferry must be rather a means of diversion or exercise than of expediting the public travel. If the ferry right is merely aquatic and stops with the water, it may be used to disappoint the hopes and expectations of the traveller. Looking to the origin of the term we will find that a ferry takes its definition from the land, not from the water: and so, that is not a ferry at all which does not subserve the purposes of travel. Our idea of a ferry is the legislative idea; and that is, that a ferry includes the right to land. The statute imposes a penalty on the ferry keeper for not setting over any person applying. 3 St. at large, N. S., p. 302, ch. 25, § 7. Then most incontestibly the ferry included the right to set over, to carry across the stream from land to land. And this is the idea of a ferry in Patrick v. Ruffners, 2 Rob. R. 209; Charles river bridge v. Warren bridge, 1 Pick. R. 344.
The privilege of landing is so necessary to the idea of a ferry, that it was at one time thought that the owner of a ferry must own the land on both sides of the river. It is true this was an error; but it does include the idea of some ownership in the soil or license to use it from the owner. This is the doctrine of Patrick v. Ruffners, 2 Rob. R. 209.
We beg leave to call the attention of the Court to the fact that whatever is necessary to the convenient use of the ferry passes by the grant of the ferry. In Crenshaw v. The Slate river Co., 6 Rand. 245, Judge Green says: The conferring a right to build a mill gives the right to build a dam if necessary. The right to fish carries the right to enter on the land. The right to carry water across land carries with it the right to enter upon and dig the necessary canal.
If we are right in our views as to the extent of a ferry franchise, then by the judgment of the Court in this case, the Wimbishs have acquired a right of dominion over the land of Somerville which authorizes them to repel him if he attempts to keep them off his property: And if this be so, then clearly the judgment is erroneous. If the judgment of the Court gives the appellees the right to go upon the lands of Somerville, however small the injury may be in fact, he is entitled to the protection of the Court. Nor was it necessary to shew to the Court below the amount of injury he would sustain. We take it, the presumption is that an entry on the land of another is an injury, and he is not bound to prove the injury or its extent; but the party claiming to go upon it must shew there is no injury. The right to go upon the land of another implies injury; and it implies a franchise in the lands. The statute too makes the same implication. It gives to any person, though not a party to the proceeding, the right to appeal from a judgment establishing a ferry; and it is only necessary to suggest injury.
It may be said that the judgment will not prevent an action for damages by Somerville if he sustains injury by the establishment of the ferry. This argument was advanced in Crenshaw v. The Slate river Co., 6 Rand. 245, but it was scouted by the Court; and it was held that compensation must be made eo instanti that property is taken for public use. And this was affirmed in Perry v. Wilson, 7 Mass. 395; Stevens v. Middlesex canal, 12 Id. 468; Vanhorne's lessee v. Dorrance, 2 Dall. R. 304; Gardner v. Trustees of Newburgh, 2 John. Ch. R. 166.
It may be said that as there was formerly a ferry at the same place, it is to be presumed that the right to land on Somerville's land had been acquired at that time; and that this ferry has been revived, and is entitled to the same right.
Our controversy is not with Royster, but with the Wimbishs. They are not the successors of Royster, nor has his ferry been transferred to them. And they did not go into the County court to establish Royster's ferry. All the Wimbishs did was to buy a slip of ground from which Royster's ferry started. The only circumstance which indicates the title of Wimbish to Royster's ferry is the title of the act of 1848, which is an act to revive Royster's ferry. But the Legislature had no right to revive Royster's ferry for the benefit of Wimbish. And the fact that the Roysters may apply to have their ferry revived for themselves is another objection to the proceeding in favour of Wimbish. If, then, the Wimbishs had not the rights of the Roysters, it cannot aid the argument in their favour that the Roysters have their rights.
But let us suppose that the Legislature had the right to revive Royster's ferry, and transfer it to John and Lewis W. Wimbish. This is not what has been done by the County court. The Royster ferry went to the road on the north side of the river. The ferry of the Wimbishs is to go to the lands of Somerville. Though Royster was restricted to a landing at the road, no one can doubt that the Wimbishs may land anywhere on the lands of Somerville if this judgment is affirmed. Then it cannot be said that this is a revival of Royster's ferry which was restricted to a landing at a particular spot, when this ferry is not thus limited.
We will now proceed to enquire whether the Wimbishs can sustain their claim if it is confined to the road on the lands of Somerville. It would seem to be useless to consider this question unless it appears that this road has been legally established. Of that fact there is no evidence in this record. For aught that appears, the public may have been permitted to use the road for the benefit of the ferry; and it may have been opened cotemporaneously with the establishment of the ferry by the owner of the ferry. All we know on the subject is, that there has been a road in existence for a number of years; but whether it was opened by the owner of the ferry, or was legally established, does not appear. Can this Court say then how it was established? The burden of proof is upon the Wimbishs. They claim to enter upon Somerville's land, and they must shew their right to do so. Somerville may stand upon the defensive. It is certainly possible that the predecessors of Somerville opened the road to increase the profits of the ferry. The Wimbishs claim that it shall now be used to destroy the ferry. Must they not, then, shew the grounds of their claim? If they claim by prescription, it is incumbent upon them to shew that the prescription originated not in the consent, but against the consent of Somerville's predecessors; and the Court below should have required the Wimbishs to shew that the road originated in a manner which entitles them to use it.
But if this is a public road, the Wimbishs are not entitled to use it for their landing. For this, we have the authority of one of the Judges of this Court; Allen, J. in Patrick v. Ruffners, 2 Rob. R. 209. The act for establishing landings has no relation to this question. That relates to landings on navigable streams, to carry produce there to be carried down the river.
The road, though wide enough for a road, may not be wide enough for a ferry landing. Then are they to be restricted to the ground taken up by the road? When they get there, they may find the boat of Somerville filling up the road. Can they not then go above or below the road? They are subjected to a penalty if they do not set over whatever is offered to them in reasonable time. Can they not do what they are punishable for not doing? If they are sued for not setting over as required, could they defend themselves by alleging a deficiency of landing privileges under this order? We have already shewn that, by the grant, all that is necessary to the convenient use of the grant passes; and, therefore, if more ground than is covered by the road is necessary, it passes by the grant of the ferry.
In establishing a road a jury is required to ascertain the damages. There may be damages when the road may be used as a landing, which would not exist if it is only to be used as a road. It may be said this is a small injury. But it involves the right to use the soil; and however small the injury, the party subjected to it is entitled to compensation. It was, therefore, the duty of the County court to have directed an enquiry whether the use of the public road as a landing would not enhance the damages of the owners of the land. It is true that the Legislature has established many ferries by its own action; but we must presume that the proper enquiries were made through its committees. Or it may be, that the Legislature acted on the idea, at one time existing, that the banks of rivers were in the public. But that idea has been long since exploded; and now it is clear that there is not a foot of ground on rivers or bays which may be taken for public uses without compensation; and, therefore an enquiry of damages was necessary.
A public road is for the use of the public generally; one and all have the same rights and interest in it. But when you confer on a ferry owner a right to use it, you give him a right and interest which is exclusive and peculiar. And thus a person who has contributed no more than others for the establishment of the road is to have a peculiar right in it. Are you to take the land of one subjected to a public road, and confer it on another, and thus give him a peculiar property in it?
But not only is Somerville's rights of property invaded by this order, but his franchise is invaded; and if the judgment is sustained, it will be ruined. It is unnecessary to enquire into the extent of the franchise on either side; whether it extends to half a mile, or more or less, though, at common law, it clearly extended on each side. If limited in extent, it is nevertheless property, entitled to be held as sacred and inviolate as any other property. A franchise is property, and the title to it is as sacred as that to any other property. Has the public a right to divide the property of Somerville, and say that another shall share with him the right to carry at this place? The case of The Charles river bridge v. The Warren bridge, 1 Pick. R. 344, and the same case in 11 Peters' R. 420, shews clearly that the public has no such right.
We say, then, that the establishment of the ferry of the Wimbishs was a plain violation of Somerville's rights, and, of necessity, injurious to him. These rights have been acquired under the law, and are vested in him by statute. It may be said these statutes may be repealed, and that is true; but the repeal of a statute does not annihilate the rights which have been acquired under it. Crenshaw v. Slate river co., 6 Rand. 209; Tuckahoe Canal Co. v. Tuckahoe Railroad Co., 11 Leigh 42.
The act of 1848 recites that the Wimbishs own the land on the south side of the river. This is no proof of that fact. There is in the record the deed of Townes, the ex'or of Royster; and the testimony shews that Royster owned land there; but is his title vested in the Wimbishs? This depends upon another question, and that is, whether Royster made a will which authorized Townes to sell? This the Wimbishs must shew, and they have failed to do it. And, on this ground, there is error in the judgment. Henry v. Underwood, 1 Dana's R. 247.
There are other formal errors for which the proceedings should have been quashed. 1st. The petition does not set out that the Wimbishs owned land, and that there was a road through it. 2d. All the justices were not legally summoned. 3d. The inquest is defective, because it does not state what route the Wimbishs proposed to use, or the jury estimated.
Robinson and Patton, for the appellees.
The statute by which the ferry now owned by Somerville was originally established, provided in terms that, " where a ferry is by this act appointed on one side of a river, and none on the other side answerable thereto, it shall be lawful for the respective County courts to appoint an opposite ferry." 7 Hen. St. p. 558. Accordingly we find that certainly as early as 1770, Royster's ferry was in existence; and with the exception of a short interval when his ferryman was killed, the ferry continued to be in existence until 1826, when it was rented by Somerville, who continued to rent it until Clarke Royster's death in 1847, and permitted it to go down in his hands. It was therefore no further nor otherwise discontinued, than was Ross's ferry, which was not used at one period for several years; and if the act 2 Rev. Code, ch. 237, § 23, p. 260, discontinued the ferry of Royster, it equally discontinued the ferry of Ross. But the mere fact of not using a privilege, or of violating a charter, does not produce a forfeiture. The forfeiture must be enforced by the public by some legal proceeding. The law is too well settled on this point to be argued. We insist then that the Wimbishs had a right to set up a ferry from the Royster ferry landing without any authority from the Legislature or the Court.
We shall not stop to make an argument to prove that the act of 1848 is a public act, of which the Court is bound to take notice. Such we must consider it, whether we look to the objects or subject or provisions of the law; and so we will treat it. The act was intended to release to the appellees the Commonwealth's right to enforce the forfeiture. There was also another object. The act of 1840 had forbid the County court to establish a ferry within a mile of another ferry: And as this ferry had not been used for some time, the appellees have preferred to avoid the penalties of that act by asking the Legislature for authority to establish the ferry. And the act of 1848 only removed a restriction upon the general power of the County court.
The counsel for the appellants, in order to sustain their claim as to the extent of their franchise, are obliged to insist that a new ferry cannot be set up to the prejudice of an old one, notwithstanding the new ferry be authorized by the king's license. On this point, we refer to Tapp v. French, 4 T. R. 666, as recognized in Huzzy v. Field, cited by the counsel for the appellant. The case of Huzzy v. Field sustains no such position. This case is cited in 11 Peters' R. 420; and it goes no further than to recognize the doctrine that if a new ferry be set up without the king's license, to the prejudice of an old one, an action will lie: And it also recognizes the doctrine that a new ferry may be set up with the king's license, though it does injure an old one. It was not deemed necessary by the majority of the Court in the case in 11 Peters to go into this subject; but it was gone into in the case of Day v. Stetson, 8 Greenl. R. 365. And in the case of the Tuckahoe Canal Co. v. The Tuckahoe Railroad Co., 11 Leigh 42, it was held that the Legislature had full power and authority to authorize a second road between the same points to carry the same tonnage and travel.
In Virginia a ferry is a privilege derived under a statute, and it exists to the extent authorized by the statute, and no further. Derived not from the common law, but the statute, the rights and remedies of the ferry owner are to be ascertained, not from the common law, but the statute. Almy v. Harris, 5 John. R. 175; Johnson v. Hitchcock, 15 John. R. 185; Trent v. Cartersville Bridge Co., 11 Leigh 521. We are then to look to the statute, and that alone, to ascertain the nature and extent of the grant to Somerville and to those under whom he claims. Is it a grant precluding the Legislature, or a Court acting under its authority, from granting another ferry at any other point on the same river? Surely not. Is it a grant precluding the Legislature, or a Court acting under its authority, from authorizing a ferry from the opposite side of the same river? We submit not. The argument on the other side is wholly incompatible with the entire legislation of Virginia on the subject of ferries.
The establishment of ferries in Virginia has been very uniformly from one bank to the other; the statutes shewing on their face, that the right remained in the Legislature or the County court to establish another ferry from the opposite bank of the same river. Look to the general act of 1648, which was in force when the ferries in question were originally established. 6 Hen. Stat., p. 20, § 11. So 7 Id., p. 403, § 4, and p. 588, § 1; 8 Id. p. 45, § 3, p. 370, § 1, p. 555, § 2; 9 Id. p. 238. These references might be multiplied.
So far from the statutes establishing ferries, giving any exclusive right of ferriage from each side of the river, there was a doubt even whether it was lawful to make such a grant until the act of 1769. 8 Hen. Stat. p. 371, § 5. That is now the general policy, but it is at times departed from; as has been done in relation to the Kanawha river. Where, then, is the foundation for the idea, that there is any such exclusive right as is contended for on the other side.
It is argued, that by the judgment in this case, we have taken the land of Somerville without compensation. We admit that the right to a ferry, does not authorize the use of the land of any other person; but we do not admit that it appears in this record, we have taken the land of Somerville. If there is a public road on the north side of the river, the ferryman may take passengers to it. Every one may pass along the road to the edge of the river; and the ferry is only a continuation of the public road.
If, indeed, the Wimbishs cannot find a public landing, they will be obliged to get one in the legal mode. But here we are discussing a ferry right; and when this question is settled, then the other question may come up, whether the Wimbishs have a landing; or if it is necessary to get a landing, how compensation is to be made. The law provides for condemning a public landing; and we apprehend that when it is condemned, it is for all the purposes for which a public landing may be used.
There is not in this record, an intimation that Somerville's rights, as owner of land, or a landing was involved in the cause. The proposition of the other side is, that the effect of the grant of the ferry right, invests the Wimbishs with the right to use the landing of Somerville, though it has not, or shall not be granted. If the consequence of the grant of this ferry right is proprio vigore, to entitle the Wimbishs to use the landing of Somerville, then clearly it is an invasion of his right. But there is no claim even, in this record, of Somerville, that his right to his landing would be invaded; and no proof that it would be injured. All that the proofs do shew, is, that Somerville's land lies on the north side of the river; and that the road runs to his landing. When such an objection as this is made, it should be made on the record, and it should be sustained by proof. Here, there is neither. There is proof of a landing; but no proof that it was a private landing. There is an established road; but no proof that it was only a road to Somerville's landing. Was it condemned only to get to his landing, or for all the purposes for which the public may use a public road? Was it intended for the accommodation of Royster's ferry rather than Ross's? We know that no ferry is established except where there is a public road. Royster's ferry has been established for more than a century; and has been used and kept up, and recognized by Somerville himself, as late as 1826.
Conceding, then, that as a general proposition, the right to the ferry does not give the right to use the landing or road on the opposite side of the river, is it not too late now, to say that the landing was not condemned and paid for, for this purpose, as well as others; especially as no question was made on this point until the case came to this Court. Would the Wimbishs be allowed to controvert Somerville's right to use their landing through which the public road runs? And would not the more than thirty or fifty years use by each of the landing of the other, conclude both of them from claiming some reserved right in their landings inconsistent with their use of them as they had been thus long enjoyed.
The proofs shew that Somerville recognized the right of Royster to use his landing just as he had a right to use Royster's landing, down to 1826, when he having possession of it as the tenant of Royster, sunk both ferries in his own; and we are now gravely told that the ferry right of Royster is lost as against Somerville by this discontinuance. There was in fact, no discontinuance as to Somerville. As to the public, it was never enforced, and has been, in fact, released by the act of 1848. And we, therefore, say that Somerville cannot, at this day, under the circumstances of this case, insist that he is entitled to the constitutional protection that his private property shall not be taken for public use without just compensation.
We have thought, and think, that whatever may be the rights of a party as owner of the soil, those rights cannot be determined in a proceeding for the establishment of a ferry. What is a ferry right? It is a right to carry passengers over the water, not to put them on shore. They have a right, when a party comes to the water, to take him in their boat and carry him over the water. That is the ferry right. We grant this would be of no value, unless the owner of the ferry either owned the soil or had a right to use it, so as that people might get to and from his boat. Our law does not permit the County court to grant the ferry right except where the grantee owns the land on one or both sides of the river, and there is a road leading to it; but the Legislature might grant such a ferry right, if the circumstances made it advisable. Of course, a grant of a ferry would not be made, except with reference to the public convenience; and, therefore, there must generally be a public road to and from the ferry.
None of our ferry acts provide for the condemnation of the landing or road. Then are all these acts unconstitutional and void; the act establishing the ferry owned by Somerville with the rest? The Legislature has always recognized the right of the owner of the land on one side of a river to have a ferry. It must, therefore, be intended that he would obtain the right to use the land on the other side; or that he was entitled to use the road down to the river. Can there be any difference, so far as the rights of the owner of the road are concerned, between the use of the road by a carriage fording the river, or where it goes into a ferry boat from the road.
It has been universally acquiesced in in Virginia, that where there was a public road, a ferry might be used in connexion with the road, so as to carry over the persons travelling on the road. What is a public road, but a road for the public to travel on; and what is a ferry but a road. Affirm this judgment, and the Wimbishs carry a wagon over in their boat; if the other side are right, Somerville may say the wagon shall not land; that the road was only condemned to be used with his ferry; and then this judgment does not affect his rights.
What, then, are the rights of the public in respect to a road condemned for the use of the public? We have supposed there could be no doubt, that when a road was condemned for a public road, the public had a right to use it for the purposes of travel and transportation, through its whole extent. Whatever might be the original object in establishing the road, whether to accommodate one ferry, or two ferries, or whether both ferries went down, and the road was only used to get to a landing on the river, for the purpose of transporting on the river, whatever the object originally, we had supposed there could be no doubt about the right of the public to use the road until it was discontinued in some legal mode. But we find great conflict of judicial opinion on the question, and one of the Court has referred us to Patrick v. Ruffners, 2 Rob. R. 209. That case in fact, raised no enquiry as to the extent of the ferry rights; but the whole question was, whether, as the landings did not belong to the ferry owner, an obstruction to the landing was a special injury to him as the owner of the ferry, for which he could sustain an action. The case has no bearing upon or relation to the question we are considering. So far as the questions before us were incidentally considered in that case, Judge Stanard concurred with Judge Baldwin. There is in the opinions of the Judges an apparent conflict on these questions; and the cases there cited, were somewhat in conflict; but there is not one of the cases which impairs our ground, that the right of the ferry is good, and that the want of the right to use the landing does not affect the right to the ferry. The question obviously did not arise in the case of Chambers v. Furey, 1 Yates' R. 167, and what is said there is wholly extrajudicial. The case of Cooper v. Smith, 9 Serg. & Rawle 26, is an authority for our proposition, that the ferry right is distinct from the right to the landing; and that the landing was to be acquired by another proceeding. And we have the decision in the case of Peter v. Kendal, 6 Barn. & Cress. 703, cited by Judge Baldwin in Patrick v. Ruffners.
All we can say then, is, that it is a question not settled by decisions; but must be decided upon principle. We cannot say more upon it than we have said.
As to the formal objections stated to the proceedings, the first is answered by the act of 1848, authorizing the Wimbishs to make the application. The second is answered by the act 2 Rev. Code, ch. 238, § 12, p. 263. And the third is unfounded in fact.
OPINION
BALDWIN, J.
The proceedings in this case are founded upon the act of the 23d of March 1848, Sess. Acts 1848-9, p. 240, ch. 223; as appears from the order made on the application of the appellees to the County court and other parts of the record. That act must have been inspected by the Court, or relied on and conceded; as it is referred to by its title in said order, which states that the applicants had complied with its provisions requiring the notice thereby prescribed. The existence of the act was in no wise controverted in any part of the proceedings, either in the County or the Circuit court, nor any objection taken to its due authentication. It appears upon the printed statute book, published by Legislative authority, which was doubtless the reason why it was not spread at large upon the record, as it might have been from the printed statute book, that being legitimate proof of the statute. And now, by the New Code, p. 660, ch. 51, § 1, it is provided that an appellate Court shall take judicial notice of private or local acts that appear to have been relied on in the Court below. In this case, the act was not only relied upon, but made the foundation of the whole proceedings, and its inadvertent omission from the bills of exception stating the evidence, is therefore immaterial. The judicial notice we are to take of it, is the same with that which we give to laws of a general and public nature, and has reference to the hearing of the cause in the appellate forum, whether decided in the Courts below before or after the commencement of the revised statute. And this renders it unnecessary to consider whether the act in question is to be regarded as a public or private act, and dispenses with any formal amendment of the record.
The purpose of the act was to establish a ferry upon the lands of John and Lewis W. Wimbish, on the south side of the Roanoke river, in the town of Clarksville, to the lands of James Somerville, on the north side of the river, provided the public interest required it, and that matter was referred to the decision of the County court, which was directed to proceed upon the application of the Wimbishs, to cause a jury to be empanneled to view the place proposed, and to say whether, in their opinion, public convenience would result from the establishment of the ferry; and, upon such opinion, and any other evidence that should be offered, the Court was authorized to establish the ferry, and fix the rates for passing the same.
No one doubts that it is within the legitimate province of legislation to establish highways, whether by land or water, or ferries or bridges across water courses, for the convenience and use of the public; and that there is no limitation of this power, other than the regard due to the rights of private property, which cannot be invaded or taken from the owner without just compensation. Such eminent domain may be exercised by the legislative department, either directly or through the instrumentality of judicial, or other tribunals, or agents; and the expenses of construction, reparation and other charges, may be defrayed out of the public treasury, or by means of franchises, granted to companies or individuals, or attached when appropriate, to the ownership or use of the soil.
The power of the Legislature to establish particular ferries by direct and special enactments has been freely exercised, from an early period of our colonial history, down to the present time; and our statute book is full of such laws. This eminent authority never has been, and never could have been, surrendered by the delegation of it to any extent, whether limited or unlimited, to judicial or other tribunals; and has continued to be exercised, notwithstanding the power given by the act of 1705, (3 Hen. St. 475,) and of 1792, (1 St. L., N. S. p. 152,) to the County courts, in general terms, to appoint such ferries over rivers and creeks, in their respective counties, as should be deemed convenient and necessary, and the act of 1806, (3 Id. p. 301,) and the revised act of 1819, (2 Rev. Code, p. 261, 267,) prescribing the limits and providing for the exercise of their jurisdiction on that subject.
The last mentioned act is a general law providing for the establishment of ferries, on the application of the owner of land on both sides, or one side only, of any water course, through which a public road passes. The ownership of the land, and the existence of the public road are, under this general law, essential to the jurisdiction of the Court. The degree or evidence of ownership required by it, we need not consider here. In the present case, the application is not founded upon it, but upon the special act of the 23d of March 1848, passed upon the representation, " to the General Assembly that the establishment of a ferry from the lands of John and Lewis W. Wimbish, on the south side of Roanoke river, in the town of Clarksville, in the county of Mecklenburg, to the lands of James Somerville on the north side of the said river, would very much promote the convenience of the people and facilitate their intercourse; " and its provisions are full and complete for that object, without reference to or deriving any aid from the general law above mentioned.
This special act designates the place where, and the persons on whose application, the ferry should be established; and the designation is satisfied by the possession and enjoyment of the Wimbishs, under a bona fide and undisputed claim of title. It could not have been in the contemplation of the Legislature to submit to the jury or the Court the question, whether any flaw could be found in the title of the appellant, which by possibility might at some future day give rise to an adverse claim to the property. The Legislature doubtless proceeded upon the assumption and belief of the fact, that the Wimbishs were the owners of the land which they held and claimed and enjoyed, and to which no one else asserted a title; and there was no necessity for any further enquiry upon that subject. The public interest could be in no wise affected by a recovery of the land from them thereafter upon a paramount claim of title, nor could the establishment of the ferry in any degree redound to the prejudice of the future claimant. It could not affect his title to the subject, inasmuch as he would not be bound by a collateral adjudication of a collateral question, in which moreover he might not know at the time that he had any interest. The notice required by the act, to the owners of all lands which would be affected by the establishment of the ferry, did not embrace the case of persons who had no existing ownership or even claim to the locus in quo; but had reference to other lands, and was properly applicable to the appellant Somerville, whose land on the opposite shore was the seat of a conflicting ferry.
We need not therefore consider whether there is any defect in the derivation by the appellees of their title. The merits of the case turn upon different questions, one bearing upon the public interests, and the other upon the individual rights of Somerville. The first is simply whether, in the language of the statute, " public convenience will result from the establishment of the ferry; " the affirmative of which we consider abundantly proved by the evidence in the record, which we think requires no comment. The second has a double aspect, one looking to the appellant's right of property in his land, the other to his right of property in his ferry.
A ferry franchise is with us the creature of our statute law: and the instances are extremely rare of a grant of it to individuals personally. By the course of our legislation since 1748, and under our existing laws, the owner of the ferry seat is incidentally the owner of the franchise. In establishing a ferry, the usual form of its designation is from the lands of an individual on one side of the water course, to the lands of another or the same individual on the opposite side; and the place of departure is always regarded as the seat of the ferry. There is no necessity for requiring a more precise description of the ferry ways on either side; and it would be extremely inconvenient to do so, both as regards the public and the ferry keeper; for that would render an exact description on both sides by metes and bounds indispensable, and make every departure from them unlawful, however immaterial, and whatever the urgency of the occasion, and though attended with no invasion whatever of the rights of others. And hence it probably is that no provision has ever been made in all our legislation on the subject, whether general or special, for the condemnation of a landing on the opposite side from the ferry seat. The Commonwealth confers, by her grant of the franchise, such right in regard to landing on the opposite shore as she may lawfully impart, and no more. The very object of the grant carries with it whatever privilege the public then has, or may thereafter acquire, to the use of a highway there for that purpose; and if the grantee claims any thing more, he must shew a title to it by private contract. It is not to be supposed for a moment that the Commonwealth contemplates by the creation of the franchise what is beyond her power to grant, the invasion of the property of others without compensation.
As to the alleged invasion of the appellant's right of property in his ferry, we need not enquire how far such a franchise is protected from competition by the doctrines of the common law. The question here is how far it is exclusive under the provisions of our statute law. The ferry seat, as we have seen, is on one side of the water course. It is there only that the ferry keeper is bound to keep his boats and his hands; there are no such obligations in regard to the opposite side: his right to take in passengers on that side has frequently been questioned; and hence the often repeated provision in our legislation authorizing him to do so. The establishment of an opposite ferry may often be demanded by the public interest and convenience; the power has been repeatedly exercised by direct legislation, and often conferred upon the County courts; and prior to the revised act of 1792 (1 St. L., N. S. 152,) their general jurisdiction to establish ferries embraced such only. And that act, by which the appellant's ferry, amongst many others, was established, contains an express provision that wherever there was no ferry corresponding to any one thereby appointed, it should be lawful for the County court to constitute and appoint an opposite ferry, with the same rates. It is true that by the act of 1840, (Sess. Acts 1839-40, ch. 79, § 1, p. 58,) in order to prevent injurious competition, the Courts are prohibited from granting leave thereafter to establish a ferry over any water course within one half mile, in a direct line, of any ferry legally established over the same water course: But if that prohibition embraces opposite ferries, as to which we express no opinion, it was no surrender of the legislative power thereafter to establish such opposite ferries, whether directly or through the agency of the Courts.
The right of the owner of the opposite ferry to participate in the use of the ferry way on the other side of the stream, depends upon the correctness of the views already presented. The establishment of his ferry confers upon him no title to any portion of the soil on the other side, and no easement there beyond the incidental delegation of such as has been theretofore, or may thereafter be, acquired by the public as a highway, or derived from the consent or contract of the owner of the land, or those under whom he claims.
We are of opinion, therefore, that the establishment of the ferry in question will be no invasion of the appellant's right of property in his land, nor of his right of property in his ferry. The effect of it will be the grant of a franchise as incidental to the apparent ownership of the ferry seat, with the enjoyment of tolls and other appurtenant privileges. Such franchise will prevail against all wrongdoers who may invade it in any respect. But it cannot prevail in favour of the apparent owner against any adverse claimant of the ferry seat who shall establish a paramount title. Nor will it confer any right to use the opposite land of the appellant for a ferry way, except as above mentioned. Whether it will carry with it the privilege of using any public roads on the opposite land, for the purpose of landing or taking passengers, & c., is a question which we deem it unnecessary to determine. That is a question which does not properly arise in this controversy about the establishment of the franchise, though it may in future controversies with the appellant, or others claiming under him, in regard to the extent of the franchise so established.
As to the evidence in the record in relation to the existence, the antiquity, the user or non-user, the abandonment by the owners, the recognition by the appellant, or the acquisition by the appellees, of Royster's ferry--whether it may have any bearing or not upon future controversies--it has none that we can perceive upon the one before us, unless perhaps it may tend to throw some light upon the question, whether the ferry now sought to be established will be of convenience to the public. The title, it is true, of the act of 1848, upon which the present application is founded, is " to revive the ferry at Clarksville, in the county of Mecklenburg, formerly known as Royster's ferry, across Roanoke river; " but that title is inappropriate to the enacting clauses, which look to the establishment de novo of a ferry upon the application of the appellees.
The formal objections taken in the argument to the proceedings in the Courts below, we think not well founded, for reasons to be deduced from the remarks already made upon the merits.
The Court is of opinion, that there is no error in the judgment of the Circuit court affirming that of the County court; and it is considered that the same be affirmed, with costs to the appellees.
JUDGMENT AFFIRMED.