Frye v. Partridge

• Decision Date: 30 June 1876
• Citation: 1876 WL 10194,82 Ill. 267
• Parties: NANCY FRYEv.ALEXANDER PARTRIDGE.
• Court: Illinois Supreme Court

82 Ill. 267

1876 WL 10194 (Ill.)

NANCY FRYE

v.ALEXANDER PARTRIDGE.

Supreme Court of Illinois.

June Term, 1876.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. JOSEPH W. COCHRAN, Judge, presiding.

Messrs. STARR & CONGER, for the appellant.

Messrs. PUTERBAUGH, LEE & QUINN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was a bill in equity, brought by Nancy Frye against Alexander Partridge, to enjoin him from using and operating a ferry across the Illinois river, near the city of Peoria, and within a mile and a half of a ferry operated by her.

The cause was heard upon the bill, answer, replication, and a stipulation of the parties in regard to the facts. The court, upon the hearing, dissolved the injunction and dismissed the bill. To reverse the decree rendered by the circuit court, the complainant in the bill has brought this appeal.

It appears, from the stipulation containing the facts as agreed upon by the parties to the record, that in January, 1849, Lewis & Mathis owned, in fee, frac. sec. 3, and the north half of sec. 10, in township 26, range 4 west, in Tazewell county, and a part of sec. 26, township 9 north, range 8 east, in Peoria county, the two tracts forming the banks and lying on opposite sides of the Illinois river, some three miles above the city of Peoria. Lewis & Mathis had, for several years, operated a public ferry across the river where their lands were situated, but they had no license from any source. At the same time, Lewis owned an eight acre tract in south-east frac. quarter of sec. 10, in Tazewell county, which was the ferry landing on the Tazewell side.

On the 22d day of January, 1849, Lewis sold and conveyed the eight acre tract, by general warranty deed, to Coleman J. Gibson, but, for the purpose of protecting his ferry from opposition, he inserted the following clause in the deed: “It is expressly understood, in this contract or deed, that Coleman J. Gibson, of the second part, and his heirs and assigns, are not to establish or authorize the establishment of a common ferryboat landing on such land, to ply between there and the opposite shore, without having permission from the said Lewis, of the first part, or his heirs or assigns.”

In April, 1853, Lewis & Mathis sold and conveyed these lands and ferry to Smith Frye, and he, on the 15th day of February, 1855, procured from the legislature a charter, which authorized him, his heirs and assigns, to establish and maintain, for a period of fifty years, a ferry across the river, from the lands purchased of Lewis & Mathis.

Section 2 of the charter is as follows: “That the privilege hereby granted shall continue and be extended for the period of fifty years, and that no other ferry shall be established within one and one-half miles of the ferry established by this act, by the county court or courts of either of the said counties of Peoria or Tazewell, during the period aforesaid, nor by any other authority except that of the General Assembly of this State, nor by the said General Assembly unless the public good shall require the same.”

Smith Frye expended large sums of money in building boats, making roads and embankments, and the ferry has been in constant operation to the time of filing the bill. The appellant derived title by devise from Smith Frye, now deceased.

It also appears, that on the 24th day of January, 1874, the legislature passed an act which refers to the provisions of the charter granted to Smith Frye, and declares that “it is made to appear to the General Assembly that the public good requires the establishment of another ferry across the Illinois river, south of said ferry, within less than one and one-half miles thereof. Therefore,

“SEC. 1. Be it enacted, etc., That full power and authority is hereby given to the county board of each and all the counties that are or may be concerned in the establishment thereof, at any place within the said distance, in such manner and upon such conditions as is or may be provided by law with reference to granting ferry rights, and to confer any and all powers upon any persons or corporations that shall establish such ferry that might have been conferred if said exclusive right had never been granted.”

It also appears, that appellee purchased of Walter Gibson, who inherited from Coleman J. Gibson, the eight acre tract, and, under the provisions of the act of Jan. 24, 1874, he proposed to obtain license from the county boards of Peoria and Tazewell counties, and operate a ferry, from the land so purchased, across the river, within a half mile of the ferry of appellant.

As appellee claims title to the eight acre tract under the deed from Lewis to Coleman J. Gibson, the first question to be considered is, how his rights and the rights of appellant are affected by that clause in the deed prohibiting the use of the land for a ferry-boat landing, for the purpose of operating a ferry from the land to the opposite shore of the river.

Whether the covenant contained in the deed is one that will run with the land, upon which an action at law might be maintained, is a question that it will not be necessary to consider or determine; but the real question presented is, whether the covenant or contract contained in the deed can be enforced in a court of equity against a subsequent purchaser, under a chain of title from Coleman J. Gibson, with notice of the covenant in the deed under which Gibson obtained title.

A brief reference to a few leading authorities in England and this country, will clearly settle the principle involved.

In Tulk v. Maxhay, 2 Phillips, 776, where A, being seized of the center garden and some houses in Leicester Square, conveyed the garden in fee to B, and B covenanted, for himself and his assigns, to keep the garden unbuilt, open, etc., on a bill brought to restrain a grantee of B from enforcing the covenant, it was said: “That this court has jurisdiction to enforce a contract between an owner and his neighbor purchasing a part of it, that the latter shall either use or abstain from using the land...