Inhabitants of Peru v. Barrett

• Decision Date: 08 May 1905
• Citation: 100 Me. 213,60 A. 968
• Parties: INHABITANTS OF PERU et al. v. BARRETT et al.
• Court: Maine Supreme Court

60 A. 968

100 Me. 213

INHABITANTS OF PERU et al.

v. BARRETT et al.

Supreme Judicial Court of Maine.

May 8, 1905.

Action by the inhabitants of Peru and Dixfield against Peter G. Barrett and Irving C. Kidder.

Action on the case, under the provisions of section 6 of chapter 20 of the Revised Statutes of 1883 (now section C of chapter 25 of the Revised Statutes of 1903), brought by the plaintiff towns, as proprietors of a ferry across the Androscoggin river at Peru Center, Oxford county, against the defendants, to recover damages caused by the interference of the defendants with the rights of the plaintiff towns in ferrying passengers and property. After the evidence had all been taken out, it was agreed to report the same to the law court, with the stipulation that "upon so much of the evidence as is legally admissible the law court is to render such judgment as the rights of the parties require. If the plaintiffs are entitled to recover, damages to be assessed at nisi prius." Judgment for plaintiffs.

Argued before WISWELL, C. J., and WHITEHOUSE. STROUT, SAVAGE, PEABODY, and SPEAR, JJ.

John P. Swasey and John S. Harlow, for plaintiffs. George D. Bisbee and Ralph T. Parker, for defendants.

PEABODY, J. This is an action on the case, brought by the plaintiff towns, as proprietors of a ferry across the Androscoggin river at Peru Center, in Oxford county, Me., against the defendants, for damages caused by interference with their rights in ferrying passengers and property.

The case comes before the law court on report.

The ferry was legally established prior to the date of the alleged wrongful acts of the defendants, and the plaintiffs were charged with the duty of its maintenance, in accordance with the provisions of chapter 20, § 2, Rev. St. 1883, which is as follows: "See. 2. They [county commissioners] may establish ferries at such times and places as are necessary, and fix their tolls. When no person is found to keep them therefor, the towns in which they are established shall provide a person to be licensed to keep them, and shall pay the expenses, beyond the amount of tolls received, for maintaining them. When established between towns, they shall be maintained by them in such proportions as the commissioners order. For each month's neglect to maintain such ferry or its proportions thereof, the town forfeits $40."

The defendants contend that the declaration neither sets out sufficiently a statutory nor a common-law cause of action. The only proprietorship in a ferry in Maine is the franchise conferred by a statute, and the party holding it has no common-law remedy against those who, without right, interfere with his profits, but the remedy is by section 6, c. 20, Rev. St. 1883. The right of the plaintiff towns to receive the compensation fixed for ferriage is incident to the obligation imposed upon them by law to maintain the ferry, and the statute protects them against wrongful interference. Day et al. v. Stetson, 8 Me. 365; Blissett v. Hart, Willes, 508. The declaration is sufficient to present a case by statute. It is not necessary in a civil action to set out the statute or to make any reference to it in the declaration, but the case must be brought within its provisions by alleging the requisite facts. 1 Chitty on Pleadings (16th Am. Ed.) 237; Gould's Pleadings, 111, § 16, note 3; 20 Enc. Pl. & Pr. 594, 595; Griswold v. Gallup, 22 Conn. 208; Chicago, etc., R. Co. v. Porter, 72 Iowa, 426, 34 N. W. 286; Hayes v. City of West Bay, 91 Mich. 418, 51 N. W. 1067; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Kennayde v. Pacific R. Co., 45 Mo. 255.

While the obligation rests upon the plaintiffs to maintain the ferry so as to make it convenient for the public, they were only required to act when no person was found to keep the ferry for the established tolls. They were then obliged to provide a person to be licensed to keep it, and to pay the expenses beyond the amount of tolls received for maintaining it. It was necessary that the ferry keeper should be licensed, and give bond to the state for the protection of passengers over the ferry, whether the licensees were appointed by the county commissioners, or provided by the towns to be licensed when no person was found to keep the ferry for the tolls. When the towns provide a person to keep the...