36 U.S. 420 (1837), Proprietors Of Charles River Bridge v. Proprietors Of Warren Bridge

Citation:36 U.S. 420, 9 L.Ed. 773
Party Name:The Proprietors of the CHARLES RIVER BRIDGE, Plaintiffs in error, v. The Proprietors of the WARREN BRIDGE and others.
Case Date:February 14, 1837
Court:United States Supreme Court

Page 420

36 U.S. 420 (1837)

9 L.Ed. 773

The Proprietors of the CHARLES RIVER BRIDGE, Plaintiffs in error,


The Proprietors of the WARREN BRIDGE and others.

United States Supreme Court.

February 14, 1837

IN error to the Supreme Judicial Court of Massachusetts. The plaintiffs in error were a corporation created by an act of the legislature of the state of Massachusetts, passed on the 9th of March 1785, entitled 'an act for incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same, during forty years.' The preamble of the act stated, 'whereas, the erecting a bridge over Charles river, in the place where the ferry between Boston and Charlestown is now kept, will be of great public utility, and Thomas Russell, Esq., and others, have petitioned this court for an act of incorporation, to empower them to build the same bridge,' &c. The act authorizes taking certain tolls, prescribed the size of the

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bridge, and fixed certain regulations by which it would not be permitted to impede the navigation of Charles river; and enjoined certain things to be done, by which the bridge should be kept in good order, and fitted for constant and convenient use. The fifth section of the act provided, 'that after the said toll shall commence, the said proprietors or corporation, shall annually pay to Harvard College or Univeristy, the sum of two hundred pounds, during the said term of forty years; and at the end of the said term, the said bridge shall revert to, and be the property of, the commonwealth; saving to the said college or university, a reasonable and annual compensation for the annual income of the ferry; which they might have received, had not said bridge been erected.'


The bridge was erected under the authority of this act; and afterwards, on the 9th of March 1792, in an act which authorized the making a bridge from the western part of Boston to Cambridge, after reciting that the erecting of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge, might diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise, the eighth section of the act declared, 'that the proprietors of the Charles River bridge shall continue to be a corporation and body politic, for and during the term of seventy years, to be computed from the day the bridge was first opened for passengers.'

The record contained exhibits, relating to the establishment of the ferry from Charlestown to Boston, at the place where the bridge was erected; and also the proceedings of the general courts of Massachusetts, by which the ferry there became the property of Harvard College. Some of these proceedings, verbatim, were as follows:

'A Court of Assistance, holden at Boston, Nov. 9th, 1830. Present, the Gov'nr, Dep'y Gov'r, Sir Richard Saltonatall, Mr. Ludlow, Capt. Endicott, Mr. Coddington, Mr. Pinchon, Mr. Bradstreet. It is further ordered, that whosoever shall first give in his name to Mr. Gov'nr, that hee will undertake to sett upp a ferry betwixt Boston and Charlton, and shall begin the same, at such tyme as Mr. Gov'r shall appoynt: shall have 1d. for every person, and 1d. for every one hundred weight of goods hee shall so transport.'

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'A court holden at Boston, November 5th, 1633. Present, the Governor, Mr. Ludlow, Mr. Nowell, Mr. Treasu'r, Mr. Coddington, S. Bradstreet. Mr. Rich. Brown is allowed by the court to keepe a fferry over Charles ryver, against his house, and is to have 2d. for every single person hee soe transports, and 1d. a piece, if there be two or more.'

'Att the Gen'all Court, holden at Newe Towne, May 6th, 1635. Present, the Gov'nr, Deputy Gov'nr, Mr. Winthrop, sen'r, Mr. Haynes, Mr. Humphrey, Mr. Endicott, Mr. Treasu'r, Mr. Pinchon, Mr. Nowell, Mr. Bradstreete and the deputies: It is ordered, that there shall be a fferry sett upp on Boston syde, by the Wynd myll hill, to transport men to Charlton and Wenesemet, upon the same rates that the fferry-men att Charlton and Wenesemet transport men to Boston.'

'A Generall Courte, held at Newtowne, the 2d day of the 9th mo. 1637. (Adjourned until the 15th, present.) Present, the Governor, Deputy Gov'nr, Mr. John Endicott, Mr. Humfrey, Mr. Bellingham, Mr. Herlakenden, Mr. Stoughton, Mr. Bradstreete and Increase Nowell: The fferry betweene Boston and Charlestowne, is referred to the Governor and Treasurer, to let at 40l. pr. A., beginning the 1st of the 10th mo., and from thence for three years.'

'At a General Court of elections, held at Boston, the 13th of the 3d mo., A. 1640. Present, the Governor, &c. Mr. Treasurer, Mr. Samuel Sheapard and Leift. Sprague, have power to lett the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion.

'At a session beginning the 30th of the 8th mo. 1644. It is ordered, that the magistrates and deputies of ye co'rte, their passage over the fferries, together with their necessary attendants, shall be free, not paying any thing for it, except at such ferries as are appropriated to any, or are rented out, and are out of the countries' hands, and there it is ordered that their passages shall be paid by ye country.'

Further extract from the colony records, filed by the plfs.

'At a General Court, &c. 7th day 8th mo. The ferry betweene Boston and Charlestown is granted to the Colledge.'

'At a Generall Courte of elections, begunne the 6th of May

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1646. In answer to the petition of James Heyden, with his partners, ferrymen of Charlestown, and of the satisfaction of all other ferry-men, that there may be no mistake who are freed, or should be passage free, and how long: It is hereby declared, that our honored magistrates, and such as are, or from time to time, shall be chosen to serve as deputyes at the Generall Court, with both their necessary attendants, shall be passage free over all ferryes; and by necessary attendants, wee meane a man and a horse, at all times during the term of their being magistrates or deputyes, but never intended all the familyes of either at any time, and that ye order neither expresseth nor intendeth any such thing.

'Att a third session of the Generall Courte of elections, held at Boston, the 15th of October 1650. In answer to the petition of Henry Dunster, president of Harvard Colledge, respecting the hundred pounds due from the country to the college, and rectifying the fferry rent, which belongs to the college: It is ordered, that the treasurer shall pay the president of the college the some of one hundred pounds, with two years forbearance, as is desired; and forbearance till it be paid out of this next levy, that so the ends proposed may be accomplisht; and for the ferry of Charles Towne, when the lease is expired, it shall be in the liberty and power of the president, in behalfe and for the behoofe of the College, to dispose of the said ferry, by lease, or otherwise, making the best and most advantage thereof, to his own content, so as such he disposeth it unto performe the service and keep sufficient boates for the use thereof, as the order of the court requires.'

The case of the plaintiffs in error is thus stated in the opinion of the court: It appears from the record, that in the year 1650, the legislature of Massachusetts granted to the president of Harvard College 'the liberty and power' to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf, and for the behoof of the college; and that under that grant, the college continued to hold and keep the ferry, by its lessees or agents, and to receive the profits of it, until 1758. In that year, a petition was presented to the legislature, by Thomas Russell and others, stating the inconvenience of the transportation by ferries over Charles river, and the public advantage that would result from a bridge; and praying to be incorporated for the purpose of erecting a bridge in the place where the ferry between

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Boston and Charlestown was then kept. Pursuant to the petition, the legislature, on the 9th of March 1785, passed an act incorporating a company by the name of 'The Proprietors of the Charles River Bridge,' for the purposes mentioned in the petition. Under this charter, the company were authorized to erect a bridge 'in the place where the ferry is now kept;' certain tolls were granted, and the charter was limited to forty years from the first opening of the bridge for passengers; and from the time the toll commenced, until the expiration of the term, the company were to pay two hundred pounds, annually, to Harvard College; and at the expiration of the forty years, the bridge was to be the property of the commonwealth; 'saving, as the law expresses it, to the said college or university, a reasonable annual compensation for the annual income of the ferry, which they might have received, had not the said bridge been erected.' The bridge was accordingly built, and was opened for passengers, on the 17th June 1786. In 1792, the charter was extended to seventy years from the opening of the bridge, and at the expiration of that time, it was to belong to the commonwealth. The corporation have regularly paid to the college the annual sum of two hundred pounds; and have performed all the duties imposed on them by the terms of their charter.

In 1828, the legislature of Massachusetts incorporated a company by the name of 'The proprietors of the Warren Bridge,' for the purpose of erecting another bridge over the Charles river. The bridge is only sixteen rods, at its commencement, on the Charlestown side, from the commencement of the bridge of the plaintiffs, and they are about fifty rods apart, at their termination on the Boston side. The travellers who pass over either bridge, proceed from Charlestown...

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