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This doctrine is a rule of the common law, that a rent charge being an entire thing and issuing out of every part of the estate, cannot be apportioned. But this rule does not apply where the land charged is divided by operation of law. In such case, it will be apportioned. And where tenants in common of land, charged with a single rent, divided the same, each assuming his share of the rent, and this was done with the assent of the holder of the rent, it was held to be a valid apportionment, exonerating each part from the rent due upon the other part, so that a release of one part was not a discharge of the whole. So if the grantee of a rent charge purchase part of the land, and take an agreement from the grantor, that he may distrain on the remaining part, for the entire rent, it would be regarded as a new grant, and might be good; though subject to any intermediate incumbrance upon the estate.
On the other hand, a rent charge is susceptible of division, by grant by the holder thereof, without attornment by the tenant of the land; of apportionment, by descent from, or devise by, the holder to several persons, and by levy upon a part of such rent. So the holder may release a part of the rent, but he cannot, as already stated, exonerate a part of the land charged, from all rent, without extinguishing the rent altogether. If the tenant of land burdened with a rent charge, be evicted of all the land, the rent is extinguished, but if of a part only of the land, the rent will be apportioned #
At common law, there was no apportionment of rent in respect to time, so that if it was for life, and the one by whose life it was measured, died before the day of payment, it was lost. But in England, by statute 11 Geo. II. ch. 19, § 15, a ratable rent for the time between the last payment and the death of the lessor for life, is collectible. And now by statute 4 & 5 Wm. IV. ch. 22, rents service and rents charge which are determined by the death of a person between rent days, are collectible pro rata upon a like principle of apportionment. And the same rule prevails in most of the States
1 Van Rensselaer v. Chadwick, 22 N. Y. 33–36. See s. c. 24 Barb. 333; Lit. $ 224.
? Farley v. Craig, 6 Halst. 262; Rivin v. Watson, 5 M. & W. 255 ; 3 Cruise, Dig. 304 ; Ryerson v. Quackenbush, 2 Dutch. 236, 251 ; Gilbert, Rents, 155, 156 ; Cook v. Brightly, Phil. Leg. Intel. Feb. 5, 1864. :3 Burt. Real Prop. $ 1123; Farley v. Craig, 6 Halst. 262. * 3 Cruise, Dig. 304; Co. Lit. 148 b; Tud. Lead. Cas. 198. 6 Tud. Lead. Cas. 184; Wms. Real Prop. 27.
by statutes, following the principle of the statute 11 Geo. II. ch. 19.1
19. Upon the death without heirs of one seised of a rent charge in fee-simple, the rent does not escheat to the State, but *simply ceases by extinguishment. And a rent may be ex- [*19] tinguished by non-payment for twenty years.2 *
20. If the owner of the rent purchase the fee of the land out of which it issues, the two will merge unless there is an outstanding mortgage upon the land. If there is, they will not.3
1. Franchises defined.
8. What franchises treated of.
7. Exclusive enjoyment of ferries.
* NOTE. — It may be of little practical use to attempt to account for the difference made by the common law, in the matter of apportionment between rents service and rents charge. But it seems that the latter being repugnant to the feudal policy, as not being an incident to tenure, were never favored by the common law. It was regarded as an entire and indivisible thing, and therefore if, by purchasing in a part of the land charged, and thereby relieving it from the charge, or by releasing a part of the land in any way by his own act, a part of it was relieved from the burden by the owner of the rent, there was no way of apportioning the rent upon the remainder, and, being no longer collectible in entirety, it was lost altogether. It was otherwise, as has been stated, where a part of the land was relieved by act of the law, when the balance remained charged pro tanto. So the holder of the rent might release or discharge a part of the rent, without affecting his right to recover for the balance, since that balance remained still a charge upon the whole land as at first. Wms. Real Prop. 276, 277; Burt. Real Prop. $ 1121 ; Lit. § 222; Co. Lit. 147 b, 148 a.
1 Hill, Trust. 395, Wharton's note.' See Mass. Gen. Stat. ch. 90, 9 24 and 26, as to apportionment of rents, whether in fee, for life or years.
Tud. Lead. Cas. 199; Owen v. De Beauvoir, 16 M. & W. 547. 8 Cook v. Brightly, in Phil. Leg. Intel. Feb. 5, 1864.
1. Another class of what are called Incorporeal Hereditaments, is Franchises, which are defined to be special privileges conferred by government on individuals, and which do not belong to the citizens of the country generally, by common right. In this country no franchise can be held which is not derived from the law of the State.
2. These privileges are usually granted to and held by corporations, created for the special purpose of exercising them, such as bridge, railroad, or turnpike corporations, and are still called “hereditaments," although inheritability cannot properly be predicated of
property held by corporations, as these can have no heirs. But [*20] in an early case in Massachusetts where a right *of ferry had
been enjoyed and exercised by individuals for more than eighty years, the claimant of the right was permitted to show, by 'parol, the existence of the ferry, his seisin of it, its continued use, and the exercise of the right to take toll. And the property in the same was held to be a private estate in fee without being appendant to a corporeal tenement.
3. It is proposed, however, to treat, and that but briefly, of only two or three of these franchises, as, to do it more fully, would involve an extended consideration of the law of corporations which the nature of the present work will not admit. These are the right of maintaining ferries, bridges, and, incidentally, railroads. Each of these comes under the definition of a franchise, whether regarded, as in England, as a privilege in the hands of a subject which the king alone can grant,4 or, as in this country, a privilege or immunity of a public nature which cannot be legally exercised without legislative grant, and which, in the one country or the other, is held to constitute a
1 Bank of Augusta v. Earle, 13 Pet. 519, 595; Ang. & Ames, Corp. $ 4. 2 3 Kent. Com. 459.
8 Chadwick v. Haverhill Bridge, 2 Dane, Abr. 686,687; Stark v. M'Gowen, 1 Nott & McC. 393.
4 2 Bl. Com. 37 ; Finch, Law, 164.
franchise. Under this definition, also, would be included the right of banking by a company or association, where the authority to act as such is granted by the legislature.?
4. Ferries, that is, rights of carrying passengers across streams or bodies of water or arms of the sea, from one point to another, for a compensation paid by the way of a toll, are, by common law, deemed to be franchises, and cannot, in England, be set up without the king's license, and in this country without a grant of the legislature, as representing the sovereign power, and do not belong to the riparian proprietors of the soil. Nor does it depend upon the right to or property in the water, on which it is exercised, for the right to the water may belong to one, and that of the ferry to another.3 The right of ferry does not confer, or enlarge, take away, or impair the right of general navigation through the same waters. *And, though [*21] it implies a right to land passengers on either bank, as occasion may require, it does not depend upon the ownership of the soil of the banks of the water.4
5. When the franchise of a ferry is granted, there are certain obligations mutually assumed between the government and the grantee . of the franchise, by which the latter, among other things, undertakes to provide safe and convenient accommodations for the public at all suitable times, a safe boat with convenient ferry ways or modes of access to and departure from the same, with a sufficient number of suitable men to take charge of the same. On the other hand, he becomes entitled, by his franchise, to receive the prescribed compensation, as toll, from the persons making use of the same. And for any failure on his part he is liable to any person who may be injured thereby. In this way, the ferry becomes property, - an incorporeal hereditament, the owner of which, for the public convenience, being obliged by law to perform certain public services, must, as a reasonable equivalent, be protected in his property.
6. The mode of creating, as well as the extent of the powers and
1 Ang. & Ames, Corp. $ 737.' 2 The People v. Utica Ins. Co. 15 Johns. 358, 379. 3 Fay, Petitioner, 15 Pick. 243, 249, 253 ; Mills v. County Comm'rs. 3 Scamm. 53. · Fay, Petitioner, 15 Pick. 243, 254 ; Peter v. Kendal, 6 B. & C. 703.
s Chadwick v. Haverhill Bridge Co. 2 Dane, Abr. 683 ; 3 Kent, Com. 458; Wil. loughby v. Horridge, 12 C. B. 742, 747.
& Chadwick v. Haverhill Bridge Co. 2 Dane, Abr. 683.
duties incident to the ownership of ferries, is, generally, regulated in each State, by its own legislation. As a general proposition, who ever has a right to a ferry, has a right to enjoy it free from any interference therewith by a stranger. Such interference would constitute what is called a nuisance, and might be restrained by an injunction upon the wrong-doer, issued by a court of chancery at the instance of the owner of the ferry. And this would apply if, after the right to establish one ferry had been granted, another were set up so near it as to take away the travel which properly belonged to the first.1 7. The great difficulty is in drawing the line within which this rule
is confined. If there were but one ferry, travel might find it [*22] and use it at the distance of miles. But the grant of "such a
ferry would not preclude the establishment of a new one within such reasonable distance as the public convenience requires, though it should have the effect to withdraw some travel from the first. This will be again considered in respect to the erection of two or more tollbridges which are governed by similar rules of laws. In one case Chancellor Kent held that the doctrine excluded “ all contiguous and injurious occupation.” 2
8. If the proprietor of the ferry abuse or neglect the franchise, or fail to exercise it so as to meet the reasonable requirements of the pub lic, the government may repeal the grant and deprive him thereof, upon a judgment in a process of scire facias or quo warranto, sued out against him, based upon such abuse or neglect. But mere negligence on the part of the proprietor does not destroy the right and property therein. The proprietor, however, may become liable for injuries resulting from such neglect, as where a traveller's horse was injured by a faulty and defective construction of a railing to a slip, over which the horse passed from the boat to the landing-place at the bank of the river, it was held that the company were liable, although the horse was led and managed at the time by his owner, a passenger on the boat.4
9. What has been said of ferries will, substantially, apply to the case of bridges. The right to construct a bridge across a river or
1 2 Bl. Com. 219; Ogden v. Gibbons, 4 Johns. Ch. 150, 160; Newburgh Turnpikė Co. v. Miller, 5 Johns. Ch. 101, 111.
2 Ogden v. Gibbons, 4 Johns. Ch. 150, 160.