Commonwealth v. Hulings

• Decision Date: 28 June 1889
• Docket Number: 26
• Citation: Commonwealth v. Hulings, 129 Pa. 317, 18 A. 138 (Pa. 1889)
• Parties: COMMONWEALTH v. M. HULINGS ET AL
• Court: Pennsylvania Supreme Court

18 A. 138

129 Pa. 317

COMMONWEALTH v. M. HULINGS ET AL

No. 26

Supreme Court of Pennsylvania

June 28, 1889

Argued June 4, 1889

APPEAL BY PLAINTIFF FROM THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY.

No. 26 May Term 1889, Sup. Ct.; court below, No. 81 January Term 1887, C.P.

On December 6, 1886, the relation of William S. Kirkpatrick Attorney General, as amended by leave of court on May 9 1887, gave the court to understand and be informed:

"That M. Hulings, S. Simcox, Roy Stone, C. W. Mackey, J. M. Dickey C. W. Gilfillan, R. G. Lamberton and W. J. Welsh, for the space of one year last past and more, have claimed to use and yet do claim to have and use without any lawful warrant within this commonwealth, the franchises, liberties and privileges following, to wit:

"That the said defendants claim to have and use the right to establish and maintain a public ferry over the Allegheny river, at or near the mouth of the Big Scrubgrass creek, in Venango county, and to levy and collect tolls from all persons using the same, under and by virtue of the provisions of an act of the general assembly, approved the 11th day of January, A.D. 1867, P.L. 100, entitled, 'An act to establish a ferry over the Allegheny river at or near the mouth of Big Scrubgrass in Venango county.' . . . .

"That on the 23d day of September, A.D. 1878, and for some time prior thereto, the aforesaid M. Hulings and S. Simcox maintained and operated a public ferry over the said Allegheny river, at or near the mouth of the Big Scrubgrass creek, in Venango county, claiming the right so to do as being the assignees of the franchises, rights and privileges granted to the aforesaid John A. Canan, in and by the act of assembly aforesaid.

"That on the 23d day of September, A.D. 1878, the aforesaid C. W. Gilfillan, C. W. Mackey, W. J. Welsh, J. M. Dickey and R. G. Lamberton (they having previously made application to the governor of the commonwealth, desiring to be incorporated into a body politic and corporate by the name of the Bullion Bridge Company, for the purpose of constructing and maintaining a bridge over the Allegheny river in Venango county, at or near the station of Scrubgrass), did enter into an agreement in writing, as parties of the first part thereto, with the aforesaid M. Hulings and S. Simcox, as parties of the second part, in which agreement it was on the part of the said parties of the first part agreed, that the said Bullion Bridge Company should be organized at the expense of the said parties of the first part, and that one fifth part of the capital stock of the said company should be assigned to the said parties of the second part; in consideration whereof it was therein on the part of the said parties of the second part agreed, that they, the said parties of the second part, did thereby waive all objection to the erection and maintenance of the bridge of the said Bullion Bridge Co. over the Allegheny river, and the said parties of the second part did therein further agree to discontinue the ferry aforesaid, as soon as the said bridge should be opened to the public. That afterward to wit on the third day of October, A.D. 1878, the application aforesaid was duly approved by the governor of the commonwealth, and letters patent in due form issued to the said the Bullion Bridge Co., and thereupon one fifth part of the capital stock of the said company was transferred and assigned to the aforesaid M. Hulings and S. Simcox.

"That on or about the 1st day of January, A.D. 1879, the aforesaid M. Hulings, S. Simcox, Roy Stone, C. W. Mackey, J. M. Dickey, C. W. Gilfillan, R. G. Lamberton and W. J. Welsh, did cease to operate the ferry aforesaid, and did discontinue and abandon the same, and did remove all boats and appliances therefrom, and for the space of two years then next thereafter did wholly omit and fail to maintain or operate said ferry and did wholly fail to provide or keep any ferrymen or any boats or other craft at said ferry, or provide any means whatsoever whereby passengers, teams, or carriages could be carried across the river aforesaid.

"But notwithstanding the premises, the aforesaid M. Hulings, S. Simcox, Roy Stone, C. W. Mackey, J. M. Dickey, C. W. Gilfillan, R. G. Lamberton and W. J. Welsh, have for the space of one year last past and more, used and still do use the franchises, rights and privileges aforesaid without any lawful warrant or authority, and during the said time have usurped, and do usurp upon the commonwealth therein to the great damage and prejudice of the constitution and laws thereof."

Upon the foregoing suggestion, on May 9, 1887, a rule on the defendants to plead, answer or demur within thirty days after notice, was granted.

On June 4th and 7th, M. Hulings and Roy Stone answered, and on October 11th, on motion in open court, judgment of ouster against John Welsh, R. G. Lamberton, C. W. Gilfillan, S. Simcox and C. W. Mackey, in default of plea, answer, or demurrer. Depositions were then taken and filed, and on June 8, 1888, the cause, as to defendants, Hulings and Stone, was submitted to the decision of the court, without a jury, under the act of April 22, 1874, P.L. 109.

On September 24, 1888, the court, SIMONTON, P.J., filed the following decision:

1. Defendants, M. Hulings, S. Simcox and Roy Stone, have been the owners, since 1877, of a ferry franchise, which was granted by the state of Pennsylvania to John A. Canan, his heirs and assigns, by an act passed January 11, 1867. The second section of said act is as follows: "That the said John A. Canan, his heirs and assigns, shall keep the said landings, ferry and roads in good order and repair, fit for the transportation and passage of travelers, teams and carriages of all descriptions, and keep good and sufficient boats and other crafts, and competent, careful, sober ferrymen, who shall constantly, as occasion may require, attend for the purpose of carrying passengers, teams, carriages, etc., across said river, with reasonable diligence and care."

2. On the 23d day of September, 1878, an agreement, in writing, was made between Charles Mackey and others, of the one part, and defendant, S. Simcox, purporting to act for himself and defendant, Hulings, which recites that the parties of the first part propose to procure an act of incorporation as a bridge company, with authority to open and charge toll for the use of a bridge then recently erected on or near the location of said ferry over the Allegheny river near Big Scrubgrass creek; and that the parties of the second part, in consideration of the one fifth of the capital stock of the said company, agree to waive all objection to the erection and maintenance of a toll bridge at said place, and "to discontinue the use of the ferry as soon as the bridge is opened for the public, reserving the right to reconstruct and operate said ferry if said bridge should be destroyed by fire or flood within two years."

3. The act of incorporation was obtained for said bridge company, with authority to charge toll for the use of the same, and it was opened to the public as a toll-bridge some time during the year 1879, and so continued until February, 1881, when it was carried away by a flood. During this time the ferry was not operated, and the rope and boats connected therewith were removed and sold.

4. Very soon after the bridge was swept away the ferry was again opened for the public use, and has been kept so ever since, except when prevented by high water or ice. There is no allegation that any person ever applied for passage over the river by the ferry while the bridge was in use, or that the defendants ever failed to carry any one who applied for passage. The proceedings in this case were begun in December, 1886.

5. Defendant, Roy Stone, never agreed to, or became a party to the contract above referred to,...