Incidents to rights of water. Definition. How created. CHAPTER VIII. OF FERRIES AND BRIDGES. THE exercise of the various rights relating to water, which have been noticed in this volume, is connected with certain incidents accompanying their possession. Of these the principal are-1. The right to the franchise of a ferry; 2. Bridges, and the duties connected with their erection and repair; 3. Tolls, and the liability thereto; and 4. The rateability of certain species of the rights above noticed, such as canals, waterworks, docks, &c. It is proposed to consider in the present chapter the laws relating to ferries and bridges, both of which arise from the interruption of a highway on land by a watercourse; and to discuss in the following one those regulating the right to take tolls, and the liability of various rights of water to be rated to the poor. Ferry. A ferry is the right to keep a boat for the purpose of carrying persons or their goods across a river, and to take toll for such carriage.1 It may be created either by royal grant or licence, or by prescription;2 but the latter case presupposes an Act of Parliament granting such franchise, without which no ferry can be lawfully set up save by a licence from the Crown.3 "A man may, under such 1 1 Stephen's Blackstone, 6th ed. pp. 682, 683; Wharton's Law Lexicon, 4th ed. p. 391. 2 Stephen's Blackstone, vol. i. p. 682; 2 Inst. 220: Trotter v. Harris, 2 Y. & J. 285; Wharton's Law Lexicon, p. 391; Woolrych, titles," says the editor of Law of Waters, p. 36. 3 1 Stephen's Blackstone, sup.; 2 Inst. 220; R. v. Marsden, 3 Burr. 1812; Willes, 512 n.; Com. Dig. Piscary, 3; Hale de Jure Maris, pt. 1, c. 2; Huzzey v. Field, 2 C. M. & R. 432 et seq. 66 66 3 a part of the Stephen's Commentaries,1 "lawfully claim to be the proprietor of a ferry,2 though he be not the owner, either "of the water over which it is exercised, or of the soil on "either side of the river; but he must possess over the "soil such rights at least as will authorize him to embark " and disembark his passengers thereon.5 . . . The right The right to tolls usually "to take toll also from customers is usually a part of the privilege. . . . But the right of the Crown to authorize privilege, "the collection of tolls is viewed by the law with a salutary jealousy; so that no burthen of that kind can "be imposed on the public, unless it have (in the language "of the books) a reasonable commencement, that is, unless but it must "it be founded on an adequate consideration, as between be founded on "the public and the grantee; which consideration is (in consideration. "the case of a ferry) to keep up a boat for the passage 66 6 over a stream not otherwise fordable. And it is also "essential that the burthen be reasonable in its amount,8 "for where the tolls granted are outrageous, the franchise "is illegal and void."9 an adequate action of Where the franchise to a ferry exists, the party entitled Rights of to it has a right of action, not only against those who parties enrefuse or evade payment of toll when due, but also against titled to fransuch as disturb his franchise by setting up a new ferry, so ferry. as to diminish his custom,10 though he is himself liable to a criminal indictment, if, either wilfully or by his neglect of duty, he obstructs the subjects of the realm in the lawful use of such ferry."1 1 Vol. i. p. 682. 2 Newton v. Cubitt, 12 C. B., N. S. 32; and as to ancient ferries, see Letton v. Gooden, Law Rep., 2 Eq. Cas. 123. 3 Com. Dig. in tit. Pisc. 13. Peter v. Kendal, 6 B. & C. 703. 5 Ibid. Stephen's Blackstone, vol. i. p. 683; Mayor of Nottingham v. Lambert, Willes, 116. 7 Ib.; Heddy v. Wheelhouse, Cro. Eliz. 558, 592. Ib.; 2 Inst. 219. 9 Ib.; Stat. 1 Westminster, c. 31; 2 Inst. 219; Cro. Eliz., ubi sup.; 2 Bl. Com. 37; Willes, ubi sup. 10 Stephen's Blackstone, vol. i. p. 683; 2 Roll. Abr. 140; Com. Dig. Action on the Case for a Nuisance (A.); Blisset v. Hart, Willes, 503; De Rutzen v. Lloyd, 5 Ad. & E. 456; Bridgland v. Shapter, 5 M. & W. 375; Pim v. Curell, 6 M. & W. 234. 11 Stephen's Blackstone, vol. i. p. 684; Willes, 512, n.; Payne v. Partridge, 1 Show. 231; see also To compen- What will pass a ferry. Actions for disturbance of a ferry. 66 Thus Blackstone says, "If a ferry is erected on a river, "so near another antient ferry as to draw away its custom, "it is a nuisance to the owner of the old one. For where "there is a ferry by prescription, the owner is bound to keep it always in repair and readiness for the ease of all "the king's subjects; otherwise he may grievously be "amerced; it would be, therefore, extremely hard if a "new ferry were suffered to share his profits, which "does not also share his burthen." So a landowner, not the owner of the water or landingplaces, has been held 3 entitled to compensation under 8 & 9 Vict. c. 20, from a railway company for injuriously affecting his land by obstructing the access to a ferry over the river and appurtenant to the land in question, the ferry being an ancient ferry which had always been attached to a house and premises, the occupier of which had always kept a ferry boat. In this case it was held that a grant of the house and land with its "profits and commodities" might pass the ferry, as there was evidence that they had never been separated-had they ever been separated, plaintiff could not have recovered in respect of injury to his land.4 5 In an action for disturbance of a ferry, the 1st count of declaration stated that plaintiffs were possessed of a ferry across the Tyne between North and South Shields for conveyance of passengers, &c., and that defendant disturbed it by carrying passengers for hire; 2nd count stated a right to ancient ferry. Defendants pleaded, inter alia, not guilty, not possessed, and that the boat was under four tons burthen. The company was incorporated by Act 10 Geo. IV. c. 98; sect. 85 of which enacts, that, after Shep. Com., vol. iii. p. 529, n.; 1 Com. vol. iii. 16th ed. p. 218. 3 Reg. v. Great Northern Railway 442, where a ferry was held to be "lands," within sect. 3 of "The Lands Clauses Act, 1845" (8 & 9 Vict. c. 18). 4 Ib. 5 North and South Shields Ferry Co. v. Barber, 2 Ex. 136. the ferry shall be established, no other ferry shall be set up within the said limits; and if any other person shall use any boat or other vessel of the burthen of four tons or upwards, in ferrying for hire across the river, he shall forfeit 57. At the time of passing the statute there was an ancient ferry, which the company under the powers of their Act purchased. It was held:— 1st. That the word "burthen" means not registered admeasurement, but capacity of carrying; 2nd. That the 85th section did not limit the general right of ferry, but only added a cumulative penalty for persons using boats above four tons burthen; 3rd. That there was no variance by reason of the first count describing the ferry generally from North Shields to South Shields, and not from one particular terminus to another; 4thly. That the mere act of ferrying passengers was a disturbance of the franchise, although the franchise was not a prescriptive ferry to the exclusion of all private boats, but simply of a ferry; 5thly. That on purchase of the ancient ferry, and completion of the new one, the former became extinct by operation of the Act of Parliament. The owner of a ferry1 obtained an Act of Parliament enabling him to build a bridge instead of the ferry, and to take tolls-and enacting that anyone evading payment of tolls by conveying persons across the river within the limits of the ferry otherwise than by the bridge should forfeit and pay 40s. On motion to restrain a railway company, whose terminus was within the limits of the ferry, from conveying passengers across river in steamboats; it was held, that though the Act gave the owner no right of action against persons evading tolls, yet if he were entitled to recover penalties de die in diem the Court could protect him by injunction from the infringement of his right.2 1 Cory v. Yarmouth and Norwich Railway Co., 3 Hare, 593. 2 See remarks of Wigram, V.-C., as to the balance of convenience and inconvenience relating to the granting of an injunction. See also A.-G. v. Birmingham, 4 K. & J. 528, ante, p. 162. Description and limits of a ferry. In Pim v. Cruel, a declaration for infringement of a ferry described the ferry as being across the Mersey, from the township, parish, chapelry, or place of Birkenhead in county Chester to the parish, township, or place of Liverpool in county Lancaster:-Held, 1. That plaintiff might recover on this declaration, although he proved a ferry both ways, for that under the lease of a ferry describing it as a ferry across a river both ways a ferry across a river one way will pass; 2nd. That the description did not import a ferry from the whole township, &c. of Birkenhead to the whole parish of Lancaster, but that plaintiff might recover on proof of a ferry from any point within Birkenhead to Lancaster. If there be an exclusive ferry from A. to B., it does not prevent persons from going by any other boat from A. directly to C., though it lie near B., if it be not done fraudulently, and is a pretence for avoiding the regular ferry.2 Where an action by the farmer of a common ferry was brought against another, a waterman, who had lands on both sides of the river three-quarters of a mile from plaintiff's ferry, for ferrying over passengers' horses, &c., it was held that the plaintiff's claim was uncertain and without limits of distance, for by the same reason that defendant may not use a ferry three-quarters of a mile from plaintiff's ferry, by the same he may not use one, two, three, ten or twenty mile off.1 In an action for disturbance of ferry a count alleging that plaintiffs were entitled to a certain ferry across the Thames, and that defendant conveyed passengers and goods across the river near the plaintiffs' ferry, was held, after verdict for the plaintiffs, to disclose a sufficient ground of action." It is sufficient for a plaintiff to prove that he was in 16 M. & W. 234. 2 Tripp v. Frank, 4 T. R. 666. 4 A decree was, however, granted subsequently in the case by Lord Hale; see Huzzey v. Field, 2 C. M. & R. 432. 5 Blacketer v. Gillett, 9 C. B. 26 (Potter's Ferry). |