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persons using his property as he may elect.1 If certain rates of toll are fixed by the charter of a corporation, a subsequent act, inflicting penalties on the corporation for exceeding the charter rates, is not a violation of the contract of the charter, and is valid.2 The right to impose toll, conferred upon a company, in consideration of its undertaking an enterprise for the public benefit, is not lost by reason of the fact that the work does not prove beneficial,3 or that the improvements mentioned in the statute are not in all respects completed,4 when such condition is not prescribed by its charter; and the neglect or inability of a corporation to perform the duties required by its charter, although sufficient to produce a forfeiture, or to make it liable to indictment,6 is a matter between the State and the corporation, which cannot be taken advantage of collaterally until it is judicially determined,6
1 Perrine i>. Chesapeake Canal Co., 9 How. 172.
2 Camden Railroad Co. v. Briggs, 22 N. J. L. 623.
3 Bennett's Branch Improvement Co.'s Appeal, 65 Penn. St. 242, 251; Susquehanna Boom Co. v. Dubois, 68 Penn. St. 182. See Commonwealth v. Allegheny Bridge Co., 20 Penn. St. 185; Carman v. Clarion River Navigation Co., 81 Penn. St. (Pt. 2) 412. See Enfield Toll Bridge Co. r. Connecticut River Co., 7 Conn, 43; Kellogg v. Union Co., 12 Conn. 18; Commonwealth v. Breed, 4 Pick. 460. Proprietors are liable for losses occasioned by want of ordinary care and the incapacity of their piers and booms to secure logs. Weld v. Androscoggin Side Booms, 6 Maine, 93. But they are entitled to toll on logs actually stopped, although other logs of the same owner are lost in consequence of the same defects. Side Booms v. Weld, 6 Maine, 105; Penobscot Boom Co. v. Baker, 16 Maine, 233; Penobscot Boom Co. v. Wadleigh, Ibid. 235.
* Tainar Navigation Co. v. Wagstaffe, 4 B. & S. 288; Quincy Canal v. Newcomb, 7 Met. 276; Carmen v. Clarion River Navigation Co., 33 Leg. Int. 239 ; 2 W. N. C. 720.
4 Lumbard v. Stearns, 4 Cush. 62; Commonwealth p. Newburyport Bridge, 9 Pick. 142. If a penalty is imposed by the statute incorporating a bridge company for unreasonably delaying or neglecting to raise the draw of the bridge, such delay or neglect does not operate as a forfeiture of the franchise. Commonwealth v. Breed, 4 Pick. 460. If the company builds its bridge and takes toll, it may be indicted before the expiration of the time specified for cbmpleting the bridge, for a failure to comply with the requirements of its charter. Commonwealth v. Newburyport Bridge, 9 Pick. 142. An indictment for neglect to provide a pier at the draw of the bridge should directly aver that a bridge has been built. Ibid. If a navigation company fails to improve the navigation of a stream as required by its charter, it will not be restrained by a court of equity from collecting the tolls allowed by the charter. The proper proceeding is by quo warranto at suit of the Commonwealth. Pixley i>. Roanoke Navigation Co., 75 Va. 320.
• Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 46; Kellogg r. Union Co.. 12 Conn. 20; Hartwhen the charter contains no reservation or condition with a view to the particular interests of individuals.i A corporation which is authorized by its charter to improve the navigation of a river, is not liable for injuries sustained by those who navigate the river, if it has not completed the improvement or charged toll,2 or if the charter merely gives permission and does not create an obligation to make the improvement.8 And if real estate acquired by the corporation is necessary for the uses in which the public is concerned, it cannot be sold or taken on execution, apart from the incidents and burdens of the franchise, so as to give the purchaser a title divested of the obligations of the company.4 In general, if no provision is made in the charter, the franchise itself, when granted for the purpose of constructing works of public utility, and collecting tolls, is a personal trust and not assignable by voluntary conveyance or forced sale;6 but'a legislative grant to a particular person, his associates and assigns, gives him the right to select the persons to be associated with him in the enterprise.6 If a private corporation
ford Bridge Co. v. East Hartford, 10 Conn. 173; Pearce v. Olney, 20 Conn. 557; Hamilton v. Annapolis Railroad Co., 1 Md. 553; 1 Md. Ch. 107; Commissioners v. State, 0 Gill, 397; New Central Coal Co. v. Georges Creck Coal Co., 37 Md. 537 ; Commonwealth v. Breed, 4 Pick. 400; Shand v. Gage, 9 S. C. 187; Young v. Harrison, 0 Ga. 130; Buncombe Turnpike Co. v. McCarson, 1 Dev. & Bat. (N. C.) 306; People v. Reclamation District, 53 Cal. 346; Sterrett v. Houston, 14 Texas, 153; State v. Orleans Navigation Co., 7 La. Ann. 679.
i Proprietors v. Hahn, 28 Maine, 300; Riddle v. Locks & Canals, 7 Mass. 109.
2 James River Co. v. Early, 13 Gratt. 541.
8 Goodrich v. Chicago, 20 11l. 445; Chicago v. McGraw, 75 1ll. 566; Mills v. Brooklyn, 32 N. Y. 489; Daniels v. Denver, 2 Col. 669.
* Gue v. Tide Water Canal, 24
How. 257; Gooch v. McGee, 83 N. C. 59, restricting State v. Rivers, 5 Ired. 297, and Arthur v. Bank, 9 S. & M. 394; Ammand v. Turnpike Co., 13 Scrg. & R. 210; Railroad Co. v. Colwell, 39 Penn. St. 337; Foster v. Fowler, 00 Penn. St. 27; Youngman v. Railroad Co., 05 Penn. St. 278; Morris Canal Co. v. Central Railroad Co., 1 C. E. Green, 419; Coe v. Railroad Co., 10 Ohio, 372. See Attorney General i>. Roanoke Navigation Co., 84 N. C. 705. An execution sale of the booms and piers of a boom company passes no right to the leasehold of shores and flats used by the company. Rollins v. Clay, 33 Maine, 132.
6 Ibid.; Lord v. Oconto, 47 Wis. 386; People v. Duncan, 41 Cal. 507; O. R. Co. v. O. B. Co. 45 Cal. 365; Tippets v. Walker, 4 Mass. 595; East Boston Freight Railroad Co. v. Hubbard, 10 Allen, 459, note.
8 Powell v. Maguire, 43 Cal. 11.
holds an entire franchise for the improvement of the navigation of a river between certain points, with power to lease a portion of the works, a lessee of such portion holds subject to the liability to forfeiture of the entire franchise in case the lessor makes default in duly improving any other portion of the stream.1
§ 145. Statutes imposing toll, being in derogation of common right, are strictly construed.2 An act which authorizes the erection of a toll-bridge, and the purchase of flats adjoining, does not, as incident to the business of maintaining the bridge, give power to build and rent wharves;3 and a company which is empowered to boom lumber, and to receive toll therefor, is not entitled to demand toll for driving lumber.4 The business of improving the navigability of a river for the purpose of aiding the running of logs and timber therein, has a natural and legitimate connection with the business of running logs and timber in the river when improved; and it has accordingly been held that an act creating an improvement company, which was afterwards amended so as to include the running of logs and timber, and the collection of tolls on logs, was not obnoxious to a constitutional provision that statutes shall not contain more than one subject.5 When a corporation is created for the purpose of making an impassable stream navigable, and no particular mode of accomplishing that result is indicated by the charter, it may be done by any of the known methods;6 but the manner of doing the work pointed out by the charter, if at all, must be pursued.7 If a grant from the State of
1 People v. Kankakee Improve- which the bridge and buildings are ment Co., 103 111. 491. erected. Sparks v. Hess, 15 Cal. 186.
2 Spraguc v. Birdsall, 2 Cowen, 419; 4 Bangor Booming Co. r. Whiting, Cayuga Bridge Co. v. Stout, 7 Cowen, 29 Maine, 123.
33. 5 Yellow River Improvement Co. v.
3 Toll Bridge Co. v. Osborn, 35 Arnold, 40 Wis. 214.
Conn. 7. A conveyance of a "bridge" 0 Canal Co. r\ Railroad Co., 4 Gill
across a certain stream, "together & J. 1.
with the toll-house, stables, and out- 7 Farnum v. Blaekstonc Canal Co.,
houses of every description," and "all 1 Sunmer, 47. Injuries by a dam
the privileges and appurtenances ap- erected for the improvement of the
pertaining or in any wise belonging navigation of a river are to be com
to said bridge," passes the land upon pensated in the manner provided by
the right to erect a toll-bridge or wharf, or to maintain a ferry across a river does not in terms restrict the right of the legislature to make similar grants to others, a subsequent charter authorizing another similar structure upon the same river does not violate any vested rights of those to whom the privilege is first granted, or require any provision for compensation to them, although the effect may be to. lessen their tolls and profits by the diversion of tolls and travel.1
statute, if any, and not by action. Calking r. Baldwin, 4 Wend. 067.
1 Charles River Bridge v. Warren Bridge, 11 Peters, 420; 0 Pick. 376; 7 Pick. 344; Richmond Railroad Co. v. Louisa Railroad Co., 13 How. 71; The Binghampton Bridge, 3 Wall. 51; Turnpike Co. v. State, 3 Wall. 210; Pennsylvania College Cases, 13 Wall. 190, 214; Fanning ;■. Gregoire, 16 How. 524; Conway v. Taylor, 1 Iilack, 603; Parrott v. Lawrence, 2 Dillon, 332; Hopkins v. Great Northern Railway Co., 2 Q. B. D. 224; Enfield Toll Bridge Co. r. Connecticut River Co., 7 Conn. 48; Salem Turnpike Co. v. Lyme, 18 Conn. 457; Hartford Bridge Co. v. Union Ferry Co., 20 Conn. 210; Fitch v. New Haven Railroad Co., 30 Conn. 39; White River Co. v. Vermont Central Railroad Co., 21 Vt. 590; Mohawk Bridge Co. v. Utica Railroad Co., 0 Paige, 554; Fort Plain Bridge Co. v. Smith, 30 N. Y. 44; Thompson v. New York Railroad Co., 3 Sandf. Ch. 025; Aiken v. Western Railroad Co., 20 N. Y. 370; 30 Barb. 305; Chenango Bridge Co. v. Lewis, 03 Barb. Ill; Oswego Falls Bridge Co. p. Fish, 1 Barb. Ch. 547; Martin v. O'Brien, 34 Miss. 21; Canal Co. t>. Railroad Co., 4 Gill & J. 1; Lafayette Plankroad Co. v. New Albany Railroad Co., 13 Ind. 90; Wright v. Shorter, 50 Ga. 72; Greer ». Hangabook, 47 Ga. 282; McLeod v. Savannah Railroad Co., 25 Ga. 445; Shorter v. Smith, 9 Ga. 517; Washington Toll Bridge Co. v. Beaufort, 81 N. C. 491; McRee r. Wilmington Railroad Co., 2 Jones
(N. C.) 180; Mason v. Harper's Ferry Bridge Co., 17 W. Va. 390; Pratt v. Brown, 3 Wis. 003; Fall v. Sutter, 21 Cal. 237; Norris v. Farmers' Co., 6 Cal. 690; Indian Canyon Road Co. v. Robinson, 13Cal 519; Richmond Railroad Co. v. Rogers, 1 Duv. (Ky.) 138; Lake v. Virginia Railroad Co., 7 Nev. 294; Tiatt v. Covington Bridge Co., 8 Bush, 31; Chapin v. Crusen, 31 Wis. 209; Janesville Bridge Co. v. Stoughton, 1 Pinney (Wis.) 607; Ward ». Severance, 7 Cal. 120; Dyer v. Tuscaloosa Bridge, 2 Porter, 290; Gates v. McDaniel, 2 Stew.(Ala.) 211; Douglas County Road Co. i;. Canyonville Road Co., 8 Oregon, 102, 108; Canyonville Road Co. P. Stephenson, Ibid. 203; Henderson i>. Maybin, 8 Rich. (S. C.) 153; Trent v. Carterville Bridge Co., 11 Leigh, 521; Tuckahoe Canal Co. c. James River Railroad Co., Ibid. 42; McRee v. Wilmington Railroad Co., 2 Jones (N. C.) 180; Allen v. Buncombe Turnpike Co., 1 Dev. Eq. 119; 2 Dev. & Bat. Eq. 115. An act incorporating a ferry toll-bridge or railroad is a private act. Carrow v. Bridge Co., Phil. L. (N. C.) 118; Burhop v. Milwaukee, 21 Wis. 257. A grant by the State of the right " to dig, mine, and remove from the beds of navigable streams and waters within the State" certain minerals, on payment of one dollar per ton, does not convey an exclusive right. Bradley v. So. Carolina Phosphate Co., 1 Hughes, 72. But see Massot v. Moses, 3 S. C. 168; Doe v. Wood, 2 B. & Aid. 724.
§ 146. If such a legislative grant gives, for an adequate consideration, privileges which are clearly exclusive, it amounts to a public pledge, and, being accepted by the grantee, has the force of a contract which the legislature has no constitutional power to impair.1 Where, for instance, a company was authorized by its charter to construct and maintain a toll-bridge within certain denned limits, it was held that the franchise thus created could not be taken away by a statute which authorized another bridge within the same limits unless provision was made for compensation to the first grantee, as in other cases where private property is taken or vested rights are invaded under the right of eminent domain.2 So, where the legislature granted the right to collect toll for a limited time, in consideration of the capital and labor to be expended in opening a canal through a slough which was not navigable, it was held that the grant could not be revoked without remunerating the grantee, and that he was entitled to collect toll after the expiration of the term.3 So, also, if the proprietor of a wharf in a harbor is authorized by the State to extend the same into the channel to a harbor line, and before the extension is made, a railroad company is incorporated with power to construct its road over the flats between the end of the wharf and the harbor
1 Power granted by a special act to ford Bridge Co. v. East Hartford, 10
a corporation to improve the naviga- How. 611; 16 Conn. 149; 17 Conn. 79,
tion of a river is not repealed by a 93; Enfield Toll Bridge Co. v. Hart
general law authorizing the iueorpora- ford Railroad Co., 17 Conn. 40; The
tion of companies with similar powers. Binghampton Bridge, 3 Wall. 61; 27
Black River Improvement Co. v. La N. Y. 87; Bridge Proprietors v. Hobo
Crosse Booming Co., N. W. Rep., Feb. ken Co., 1 Wall. 110; Commonwealth
18, 1882; 8 So. L. Rev. 14. A statute v. New Bedford Bridge, 2 Gray, 339;
which grants to one person the privi- Newburgh Turnpike Road i;. Miller, 6
lege of erecting a weir in certain tide Johns. Ch. 101; Aiken c. Western
waters is not repealed or mollified by Railroad Co., 20 N. Y. 370; Cayuga
a subsequent general act which gives Bridge Co. v. Stout, 6 Wend. 85;
to all others the same right under cer- Chenango Bridge Co. ». Lewis, 03
tain conditions precedent. State v. Barb. Ill; Proprietors of Bridges v.
Cleland, 08 Maine, 268. Hoboken Land Co., 14 N. J. Eq. 81,
a Ibid.; Pistataqua Bridge v. New 603; 1 Wall. 110; McRoberts v. WashHampshire Bridge Co., 7 N. H. 35; burne, 10 Minn. 23; Norris v. FarmCrosby v. Hanover, 36 N. H. 404; era' Co., 6 Cal. 690. Backus r. Lebanon, 11 N. H. 19; John- 1 Grant v. Leach, 20 La. Ann. 239. son r. Crow, 87 Penn. St. 1X4; Hart