Chapin v. Crusen

Statute, when a contraet. — Repeal hy implication — Constitutional law. — Verry franchise. 1. A statute conferring a franchise is not to he construed as a contract on the part of the state, unless it shows hy its terms that such was the intent of the legislature. 2. Ch. 413, P. & L. Laws of 1865, granted to A and his associates, heirs, executors, administrators and assigns, the exclusive light of keeping a ferry at a certain point on the Wisconsin river for ten yea/rs, with the right to bridge the north branch of the river at the place named, and declared that no ferry should be granted within one mile of the same. Held, that there was no contract, and the legislature had power to repeal the act, and thus deprive A or his assigns of the franchise before the expiration of the ten years, and after a ferry had been established by them. 3. If the act had expressly provided that it should have the force of a contract; or if it had provided that the grant was upon condition that the grantee or his assigns would conduct the ferry in a certain manner and at certain rates of ferriage for the ten years; or, perhaps, if the operating of the ferry had involved a large expenditure of money in permanent improvements, which would be of little or no value without the franchise — there would be some ground for saying that the franchise rests in compact and is irrepealable. But none of these facts existed in this case. 4. An act granting an exclusive franchise to A, his heirs, assigns, etc., is repealed by implication, pro tanto, by a subsequent grant of the same exclusive franchise to A and B, their heirs, assigns, etc.; and this, although the subsequent act purports merely to a/mend the prior one. 5. On this principle, ch. 455, P. & L. Laws of 1869, repealed so much of ch. 413, P. &. L. Laws of 1865, as conferred the franchise above described; and whatever rights defendants had acquired as assigns of A under the earlier act, were gone after the passage of the later one. 6. The grantees named in the act of 1869, having taken their boat to the proper place for the purpose of operating the ferry under the law, and having twice extended their cable across, the river, are held to have accepted the franchise, and to be entitled to maintain an action for a violation thereof, although, after such cable had twice been broken down (by whom does not appear), they made no further effort to exercise the franchise before bringing this suit to restrain defendants from operating a ferry in the same place. 7. The granting of a ferry franchise on the Wisconsin river does not interfere with the free navigation thereof, and is therefore not in violation of sec. 1, art. IX. of the state constitution. 8. The fact that the legislature, under sec. 22, art IV., of the constitution, had conferred upon all county hoards power to license ferries, did not prevent a direct legislative grant of such a franchise before the adoption of the constitutional amendment known as sec. 81, art. IV., which deprives the legislature of such power in all cases where the ferry is wholly within this state. 9. Before the adoption of said amendment, there was no constitutional provision which prevented the legislature from granting an exclusive franchise of the kind here in question for a limited time. State v. Milwaulm Gas Light Go., 29 Wis., 454.

APPEAL from the Circuit Court for Iowa County. This action was brought to recover damages for the alleged interference by the defendants in the enjoyment of a certain ferry franchise across the Wisconsin river, and for an injunction to restrain any future interference therewith. By sec. 1, .chap. 418, P. & L. Laws of. 1865, the legislature granted to the plaintiff JE. Chapin, his associates, heirs, executors, administrators and assigns, the exclusive right and privilege of keeping and maintaining the ferry in question for the period of ten years. It also gave Chapin or his associates the right to bridge the north branch of the river at the designated point, and enacted that no ferry should be granted within one mile either above or below said ferry. The place where the ferry should be located was particularly specified. The remaining sections of the act fix the rates of toll, and prescribe certain rules for managing and operating the ferry. Chopin never operated the ferry under the act of 1865, but it seems that he made a verbal assignment of the franchise to one of the defendants, in the fall of 1865, or the following spring, and in September, 1866, the defendants, on the faith of such assignment, placed a cable across the river, put on a boat, commenced operating the ferry, and continued to operate the same until after the commencement of this action. By chapter '455, P. & L. Laws o£ 1369, the legislature so amended the act of 1865, that there was thereby granted to E. Chapin and B. L. Telfair, their heirs* executors, administrators and assigns, the exclusive right and privilege of keeping and maintaining said ferry for ten years, from the lsi of April, 1869. It further provided that no ferry should be granted within two miles east, or one mile west, of said ferry. The law of 1869 commences as follows: “ Section 1 of chapter 413, private and local laws of 1865, is hereby amended so as to read as follows: ” The remaining provisions of the law of 1869 are the same as those contained in the law of 1865, with the exceptions above mentioned. In May, 1870, the plaintiffs stretched a cable across the river, and took a boat there for the purpose of operating the ferry; but the cable was broken down in a day or two thereafter. The plaintiffs restored it, and it was again broken down, but by whom does not appear in either case. Before the plaintiffs could put up their cable the third time, the defendants stretched their cable across the river at nearly the same place, although forbidden to do so by one of the plaintiffs, and from thence used and enjoyed the ferry franchise. There was considerable testimony given on the trial tending to show that, in operating the ferry, the defendants had not properly accomodated persons who desired to cross the river at such ferry. It is unnecessary to state this testimony at length. The questions litigated upon the trial were: 1st, The effect of the alleged verbal assigment by Chapin to the defendant Edmond Orusen, of the franchise granted by the law of 1865, so far as the same might be affected by the statute of frauds; and 2nd, Whether the defendants had been guilty of such neglect in the management as to work a forfeiture of their rights under that law. The instructions given by the court to the jury were confined to these two questions. The defendants had a verdict and judgment; and the plaintiffs appealed from such judgment. 1. Tlie assignment of a ferry franchise must be in ■writing and for value, and all the parties in whom the franchise is vested must join. Here there was neither writing nor consideration, and Chapin's associates were not consulted and did not join. Such a franchise is an incorporeal hereditament, appurtenant to the soil. It is real estate, and must be conveyed in the same manner as other real estate. Benson v. Mayor, etc., 10 Barb., 223, 245; Bowman v. Waihen, 2 McLean, 376; Mills v. County of St. Clair, 2 Gilman, 197; Lombard v. Cheever. 3 id., 469 ; McBwen v. Taylor, 4 Greene, 532 ; Conway v. Taylor, 1 Black (U. S.), 603; Bundy v. Chambers, 23 Ill., 369; Perrin v. Oliver, 1 Minn., 202. A parol conveyance of a ferry franchise would contravene the statute of frauds. R. S., chap. 107, sec. 6; 14 Wis., 69. Equity will not enforce such a contract on the ground of part performance, unless it is fair, just and certain, and is founded on an adequate consideration. 2. The legislature had the right to amend the original charter as it did by the act of 1869, associating another person with the grantee. 1. The plaintiffs never attempted to use the franchise claimed by them until more than a year after it was granted, and could not then use it, in consequence of high water, until after the commencement of this action; consequently, they had sustained no damages, and the verdict was right. 2. The legislature had no constitutional power to grant this franchise, because, (1.) The Wisconsin river is a “ common highway, and forever free to the inhabitants of this state.” Ordinance of 1787, art. 4; Const, of Wis., art. IX., sec. 1; R. S., ch. 41, sec. 1; Amendment to Const., Laws of 1871, p. 272. (2.) The legislature had conferred upon the board of supervisors the sovereign power of granting ferry franchises. Const., art. IV., sec. 22 ; R.-S., ch. 20, pp. 272, 273. 3. The plaintiffs acquired no rights under the act of 1869, there being no evidence of accept-anee of the grant. Ferrell v. Woodward, 20 Wis., 458; Angelí & Ames on Corp., §§ 82-8. 4. A ferry franchise is not an “ estate or interest in lands.” 13 Am. Law Reg., 513 (Jnly, 1865); 3 Kent’s Com., 458 ; Prosser v. Wapello Go., 18 Iowa, 333 ; Trustees, etc., v. Taiman, 13 III, 30; Munroe v. Thomas, 5 Gal., 470; Rees v. Lawless, 6 Littell, 184; Smith v. Goulding, 6 Gush., 154; McRoberts v. Washburne, 10 Minn., 23; Whit-marsh v. Walker, 1 Met., 313; Claflinv. Carpenter, 4 id., 580; Sampson v. Burnside, 13 N. EL, 264; Knott v. Brush, 2 Oregon, 237; Newton v. Cubiii, 12 O. B. (N. S.), (104 E. O. L.), 30. 5. After part performance of a contract void "by the statute of frauds, a court of equity can decree specific performance. Browne on Stat. of Frauds, chap. 19, § 437 et seq.; Adams v. Patrick, 30. Yt., 520; Admr. of Pike v. Morey, 32 id., 37; Kidder v. Bari', 35 N. EL, 254-5; McCray v. McOray., 30 Barb., 633; Traphagan v. Traphagan, 40 id., 537 ; Williston v. Willis-ton, 41 id., 635; Ramsey v. Liston, 25 III., 114; Stevens v. Wheeler, id., 308; Blunt v. Tomlin, 27 id., 100, 101; Mason v. Blair, 33 Ill., 207; Keys v. Test, 33 id., 316; New Orleans etc. R. R. Go. v. Moye, 39 Miss., 375 ; School Dist. v. Machón, 4 Wis., 79 ; Smith v. Finch, 8 id., 245; Daniels v. Lewis, 16 id., 140; Fitzsimmons, v. Allen, 39 Ill., 440; Moory v. Beasley, 3 Ohio, 296; Meriihew v. Andrews, 44 Barb., 200; Woodbury v. Parshley, 7 1ST. H., 237; Paine v. Wilcox, 16 Wis.; 202 ; Arguello v. Fdinger, 10 Gal., 157 et seq.; Eaton v. Whitaker, 18 Conn., 222. 6. If the agreement between Chapin and Grusen was a mere license, revokable at the pleasure of Ghapin he never did revoke it.