Adam Mills, John Gay, Charles Mullikin, John Fallon, William Wiggins, Andrew Christy, Elizabeth Christy, Mary Christy, Melanie Christy, Which Melanie Is the Widow, and Which Said Ellizabeth Christy and Mary Christy Are the Only Children and Heirs At Law of Samuel Christy, Deceased 8212 Said Children Being Infants, and Appearing By Said Melanie, Their Next Friend 8212 Emily Pratte, Widow of Bernard Partte, Lewis Penguet, and Therese, His Wife, Stephen Niedlet and Celeste, His Wife, Louis Bogy and Pelagie, His Wife, Joseph Blaine and Aimi, His Wife, Which Said Emily Pratte, Bernard Pratte, Therese Penguet, Celeste Niedlet, Pelagie Bogy, and Aimi Diane Blaine, Are Children and Only Heirs At Law of Bernard Pratte, Deceased Plaintiffs In Error v. the County of St Clair and James Harrison

• Decision Date: 01 January 1850
• Citation: 12 L.Ed. 1201,49 U.S. 569,8 How. 569
• Parties: ADAM L. MILLS, JOHN H. GAY, CHARLES MULLIKIN, JOHN O'FALLON, WILLIAM C. WIGGINS, ANDREW CHRISTY, ELIZABETH CHRISTY, MARY F. CHRISTY, MELANIE CHRISTY, WHICH MELANIE IS THE WIDOW, AND WHICH SAID ELLIZABETH CHRISTY AND MARY F. CHRISTY ARE THE ONLY CHILDREN AND HEIRS AT LAW OF SAMUEL C. CHRISTY, DECEASED,—SAID CHILDREN BEING INFANTS, AND APPEARING BY SAID MELANIE, THEIR NEXT FRIEND,—EMILY PRATTE, WIDOW OF BERNARD PARTTE, LEWIS PENGUET, AND THERESE, HIS WIFE, STEPHEN F. NIEDLET AND CELESTE, HIS WIFE, LOUIS V. BOGY AND PELAGIE, HIS WIFE, JOSEPH BLAINE AND AIMI, HIS WIFE, WHICH SAID EMILY PRATTE, BERNARD PRATTE, THERESE PENGUET, CELESTE NIEDLET, PELAGIE BOGY, AND AIMI DIANE BLAINE, ARE CHILDREN AND ONLY HEIRS AT LAW OF BERNARD PRATTE, DECEASED, PLAINTIFFS IN ERROR, v. THE COUNTY OF ST. CLAIR AND JAMES HARRISON
• Court: U.S. Supreme Court

49 U.S. 569

8 How. 569

12 L.Ed. 1201

ADAM L. MILLS, JOHN H. GAY, CHARLES MULLIKIN, JOHN

O'FALLON, WILLIAM C. WIGGINS, ANDREW CHRISTY,

ELIZABETH CHRISTY, MARY F. CHRISTY, MELANIE CHRISTY,

WHICH MELANIE IS THE WIDOW, AND WHICH SAID ELLIZABETH

CHRISTY AND MARY F. CHRISTY ARE THE ONLY CHILDREN AND

HEIRS AT LAW OF SAMUEL C. CHRISTY, DECEASED,—SAID

CHILDREN BEING INFANTS, AND APPEARING BY SAID

MELANIE, THEIR NEXT FRIEND,—EMILY PRATTE, WIDOW OF

BERNARD PARTTE, LEWIS PENGUET, AND THERESE, HIS WIFE,

STEPHEN F. NIEDLET AND CELESTE, HIS WIFE, LOUIS V. BOGY

AND PELAGIE, HIS WIFE, JOSEPH BLAINE AND AIMI, HIS

WIFE, WHICH SAID EMILY PRATTE, BERNARD PRATTE,

THERESE PENGUET, CELESTE NIEDLET, PELAGIE BOGY, AND

AIMI DIANE BLAINE, ARE CHILDREN AND ONLY HEIRS AT LAW

OF BERNARD PRATTE, DECEASED, PLAINTIFFS IN ERROR,

v. THE COUNTY OF ST. CLAIR AND JAMES HARRISON.

January Term, 1850

THIS case was brought up from the Supreme Court of the state of Illinois, by a writ of error issued under the twenty-fifth section of the Judiciary Act.

Mills and others filed their bill in chancery in the state court of Illinois, seeking to obtain an injunction against the defendants

in error. The bill states the case of the complainants as follows: —

The people of the western part of Illinois had from the earliest settlement of that country, maintained a constant commercial intercourse with the town of St. Louis, and long felt the necessity for increased facilities in crossing the Mississippi River. For the purpose of securing these facilities, the state made a contract with Samuel Wiggins for the establishment of a ferry across that stream, with boats to be propelled by steam or horse power. An act of the General Assembly was passed, which was approved on the 2d of March, 1819, which was as follows:——

'An act to authorize Samuel Wiggins to establish a Ferry upon the Waters of the Mississippi. Approved March 2, 1819.

'SEC. 1. Be it enacted by the people of the state of Illinois, represented in the General Assembly, that Samuel Wiggins, his heirs and assigns, be, and they are hereby, authorized to establish a ferry on the waters of the Mississippi, near the town of Illinois in this state, and to run the same from lands at the said place that may belong to him. Provided, that he shall not use any boat or water-craft, except such as shall be propelled or urged to the water by steam, horses, oxen, or other four-footed animals. Provided, that the said Samuel Wiggins, his heirs and assigns, shall have the said ferry in actual operation within eighteen months from and after the passage of this act.

'SEC. 2. And be it further enacted, that no person or persons, except those who have ferries now established at this place, shall establish any ferry of the description aforesaid within one mile of the ferry established under this act. And if any person or persons shall, contrary to the provisions of this act, run any boat or boats of the description aforesaid, he, she, or they shall forfeit every such boat, with its furniture and apparel, to the said Samuel Wiggins, his heirs and assigns, which may be attached and recovered before any court in this state having competent jurisdiction.

'SEC. 3. And be it further enacted, that it shall and may be lawful for the said Samuel Wiggins, his heirs or assigns, to demand and receive the same rates of ferriage as are now of right demandable at the ferry established nearest to the ferry authorized to be established by this act. Provided, that no more shall be charged for a wagon, cart, or other carriage, if loaded, than could be charged if empty.

'SEC. 4. And be it further enacted, that the ferry hereby established shall be subject to the same taxes as are now, or hereafter

may be, imposed on other ferries within this state, and under the same regulations and forfeitures. And that if the provisions of the second section of this act shall be made to appear to the General Assembly to be injurious to the public good, that then, and in such case, the said second section may be repealed.'

At the date of this act, Wiggins did not own any land near the town of Illinois; but within the time allowed by the act for the establishment of the ferry, he purchased a tract of land of one hundred acres, and established the ferry, with boats propelled by horses, according to the terms of the act.

He increased the means of transportation as the public wants required, and changed the boats employed from boats propelled by horses to boats propelled by steam, so as to comply with the letter and spirit of his contract with the state of Illinois, and meet all the demands of the increasing population and commerce.

The bill claims, that under this act of the 2d of March, 1819, Samuel Wiggins, his heirs and assigns, were entitled to the perpetual franchise of maintaining a ferry across the Mississippi from any point near the town of Illinois, upon any land that might at any time belong to him or them.

The bill states that the bank of the Mississippi, opposite the town of St. Louis, is an alluvial formation, which is continually falling into the stream, and that the character of the stream is such that, by reason of the frequent changes in the channel, the sudden formation of sand-bars, and the falling of the banks, it became necessary for Wiggins, in order to fulfil his contract with the state of Illinois, to acquire title to a large space of land on the bank of the river, in order to change the place of landing as the changes in the river and in its banks might require.

The Legislature of Illinois, appreciating this necessity, and recognizing the franchise as perpetual, passed an act on the 6th day of February, 1821, the essential parts of which were as follows:——

'An Act to authorize Samuel Wiggins to make a Turnpike Road, and for other Purposes. Approved February 6, 1861.

'SEC. 1. Be it enacted, by the people of the state of Illinois, represented in the General Assembly, that Samuel Wiggins, his heirs or assigns, be, and hereby are, authorized to make and construct a turnpike road, of one hundred feet wide, to commerce on the Mississippi River, opposite to St. Louis,

on lands that may belong to him, to run thence across the American Bottom to the bluffs within two miles of George Swaggart's, and to construct and erect all necessary bridges on said road; and that he or they be, and are hereby, authorized to build and make said turnpike road through the lands of any person or persons whomsoever, except yards, gardens, orchards, or dwelling-houses; that, when the aforesaid road is about to be carried through any improved land, the maker of said road shall first obtain the consent of the proprietor or proprietors of said grounds, and should the parties not agree on the amount of said damages, then a jury of six reputable freeholders should be summoned, and being duly sworn before any justice of the peace of the county faithfully and impartially to assess the damages, which damages shall be paid before the said road shall be permitted to pass through such grounds.'

'And whereas the said Samuel Wiggins, his heirs and assigns, were authorized to establish a ferry upon the waters of the Mississippi River, near the town of Illinois, in this state, and a sand-bar having been formed since that time opposite said ferry, therefore:——

'SEC. 5. Be it further enacted, that the said Samuel Wiggins, his heirs and assigns, be, and they are hereby authorized to remove said ferry on any land that may belong to him or them on the said Mississippi River, under the same privileges as were prescribed by the act entitled, 'An act to authorize Samuel Wiggins to establish a ferry upon the waterns of the Mississippi,' approved March 2d, 1819.'

On the 13th of July, 1822, Wiggins acquired title to a tract of four hundred acres of land, adjoining the tract from which he first ran his ferry. The tract so acquired is situated on the bank of the river below his first tract, and was necessary to the owners of the ferry franchise in order to secure a convenient landing of the boats, as changes occurred in the channel or in the bank of the river.

The bill states sundry conveyances and descents, by which the complainants have become invested with the title to all the land held by said Wiggins, and with the franchise granted by the state of Illinois.

It is also averred that Wiggins, while the owner of the franchise, fulfilled all the duties and obligations which he had assumed under his contract with the state of Illinois, and that his assignees, owners of said franchise, have ever since his transfer of the franchise in like manner fully discharged those duties; that speedy, secure, and comfortable passage has been

at all times afforded for all persons and property offered to be crossed over the river, in such vessels only as are required by the act granting the franchise.

The bill then states an act of the legislature of the state of Illinois, approved on the 2d of March, 1839, by which commissioners were appointed to locate a road and ferry-landing between Cahokia Creek and the Mississippi River, opposite St. Louis; the road and ferry-landing to be three hundred feet wide, upon the most eligible ground for the purpose. This act authorized the County Commissioners' Court of St. Clair County to cause the land on which the road and ferry-landing should be located to be condemned, and pay the owners of the land the damages; and after such payment the said court should have power to enter upon the land so condemned, and establish a ferry across the Mississippi River, and might either carry on the ferry for the county itself, or lease it for any term not exceeding five years, to any lessees.

The commissioners thus appointed located the road and ferry-landing, three hundred feet wide, upon the land which Wiggins acquired in July, 1822, and which was conveyed by him with the franchise.

The land was condemned, and its value estimated at six...