Mayor v. Starin

Citation106 N.Y. 1,12 N.E. 631
PartiesMAYOR, ETC., OF THE CITY OF NEW YORK v. STARIN and others.
Decision Date07 June 1887
CourtNew York Court of Appeals

OPINION TEXT STARTS HERE

Appeal from general tern, First department.

This action was commenced to restrain the defendants from maintaining and operating a ferry between the city of New York and Staten island. The plaintiffs allege in their complaint that, under what is called the ‘Montgomerie Charter,’ the city of New York has the exclusive ownership of the ferry franchises between it and Staten island, and the exclusive right to establish and regulate the ferries, with power to let, sell, or otherwise dispose of them; that, in violation of its rights, the defendants were operating a ferry between New York and Staten island, and that they thus intercepted and unlawfully appropriated profits, rents, and ferriage fees which belonged to it; that, before the commencement of the action, it had duly established a ferry between it and Staten island, which it had leased to the Staten Island Rapid Transit Railroad Company for a term of years expiring on the first day of May, 1893, and that under and in consideration of such lease it received from the railroad company an annual rent of $10,000 for wharf privileges, together with 14 1/4 per centum of the gross receipts of the ferry franchise; that, by reason of the unlawful operation of the ferry by the defendants, the revenues and profits of the ferry established and leased by it were seriously diminished; and that, unless the defendants were restrained from their unlawful operation of the ferry, it would suffer great damage and injury; and the plaintiffs prayed judgment that the defendants, and each and every of them, and their agents and servants, be restrained by the order and injunction of the court from operating a ferry between the city and Staten island, and that an account might be taken of the damages suffered by the city by reason of the unlawful operation of the ferry by the defendants. Besides other matters and defenses alleged, in their several answers the defendants put in issue the claim of the city of the exclusive ownership of the ferry franchise between it and Staten island, and its exclusive right to lease the ferries, and denied that they were operating any ferry, and alleged that they were engaged in the transportation of goods, merchandise, and passengers upon the public waters between Staten island and New York, with steam-boats duly enrolled and licensed under the laws of the United States for carrying on a coasting trade.

The issues thus framed were brought to trial at a special term of the supreme court, which decided the case in favor of the plaintiffs as against the Independent Steam-Boat Company, and dismissed the complaint as to the other defendants. A judgment was entered against the Independent Steam-Boat Company perpetually restraining it from operating any ferry between the city and Staten island, and adjudging that it should pay to the city, for the damages caused to it for its unlawful acts, the sum of $338.73, besides the costs of the action. From the judgment entered upon the decision of the special term against it, the Independent Steam-Boat Company appealed to the general term, and the plaintiffs appealed from so much of the judgment as was adverse to them, and the general term affirmed the judgment. Then the plaintiffs and the Independent Steam-Boat Company both appealed to this court.

Noah Davis, James McNamee, and Adolph L. Pincoffs, for appellants.

James C. Carter and W. W. MacFarland, for respondents.

EARL, J.

In the consideration of this case it is important first to determine what a ferry is. In a general sense, it is a highway over narrow waters. In 2 Washburn on Real Property (3d Ed. 269) it is said: ‘Ferries-that is, rights of carrying passengers across streams or bodies of water or arms of the sea, from one point to another, for a compensation paid by way of a toll-are by common law deemed to be franchises, and cannot in England be set up without the king's license, and in this country without a grant of the legislature as representing the sovereign power, and do not belong to the riparian proprietors of the soil.’ A ferry franchise is property, an incorporeal hereditament, and as sacred as other property, (Conway v. Taylor's Ex'r, 1 Black, 603;) and the right to a ferry does not depend upon the right to or the property in the waters over which it passes, or in the soil under the water, or upon the shore at either end of the ferry. In re Fay, 15 Pick. 243, 253. A ferry is a continuation of the highway from one side of the water over which it passes to the other, and is for the transportation of passengers or of travelers, with their teams and vehicles, and such other property as they may carry or have with them. Broadnax v. Baker, 94 N. C. 675. In a strictly ferry business, property is always transported only with the owner or custodian thereof; and ferry-men who do nothing but a ferry business, and have nothing but a ferry franchise, are bound to transport no other property; and, in the transportation of persons with their property, they are not under the obligations of a common carrier, but are bound only to due care and diligence. Wyckoff v. Queens Co. Ferry Co., 52 N. Y. 32. But they may combine, and usually do combine, with the ferry business the business of a common carrier, carrying freight and merchandise without the presence of the owner or custodian, like other carriers engaged in the transportation of such freight; and, as to such freight, they are under the duties and obligations of a common carrier. As ferry-men they are under a public duty to transport, with suitable care and diligence, all persons with or without their vehicles and other property; and as common carriers it is their duty to carry all freight and merchandise delivered to them.

No one has the right to set up a public ferry, and charge tolls for the transportation of persons and property, without the license of the sovereign; and at common law it is believed that one so doing was guilty of a crime, and he could be proceeded against by writ of quo warranto; and so, by our Penal Code, it is enacted that ‘a person who maintains a ferry for profit or hire upon any waters within this state, without authority of law, is punishable by a fine not exceeding twenty-five dollars for each time of crossing or running such ferry.’ Section 416. And any person who invades the franchise of another by running a ferry is liable to any damage he causes such other person, and may be restrained by the judgment of a competent court. The owner of a ferry franchise is bound to exercise his franchise for the public convenience; and, if he fails to do so, his franchise may be forfeited by the sovereign for non-user, and at common law he could be indicted. If he fails to establish and maintain a ferry, he could not in a civil action restrain any other person from operating the ferry, or recover any but nominal damages for his so doing. No court would restrain the operation of a ferry which was demanded by the public convenience, simply because the franchise belonged to another who neglected or refused to use it. So, also, if the owner of an exclusive ferry franchise does not establish sufficient accommodations for the public, he may be proceeded against by the sovereign, and compelled to discharge his public duties, or his franchise may be forfeited. It is therefore undisputed that if the plaintiffs have the ferry franchise which they claim, and the defendant the Independent Steam-Boat Company had established and was engaged in operating a ferry between New York and Staten island, then this judgment was right, and ought to be affirmed.

Manhattan island, afterwards the city of New York, is an island formed by the Hudson river on the one side, and Spuyten Duyvel creek and the Harlem and East rivers on the other sides; and Staten island is in the waters south of New York, the nearest point of which is about five miles from Manhattan island. It is about fourteen miles in length, eight miles in width at its widest point, and contains about fifty square miles.

The first charter of the city of New York was granted by Gov. Nicolls on the twelfth of June, 1665, but it contained nothing on the subject of ferries. On the twenty-seventh of April, 1686, Thomas Dongan, lieutenant governor of New York under King James II., gave to the city of New York what is known as the ‘Dongan Charter,’ granting a ferry which had before been established, now known as Fulton Ferry,’ from New York city to Long island, defining the boundaries and jurisdiction of the city, and granting full power ‘to establish, appoint, order, and direct the establishing, making, laying out, ordering, amending, and repairing of all streets, lanes, alleys, highways, watercourses, ferry, and bridges in and throughout the said city of New York and Manhattan's island.’ On the twenty-third of January, 1708, Cornelius Seberingh, of Nassau, now Long island, presented to Viscount Canbury, governor of the provinces of New York and New Jersey, a petition, indorsed by many citizens, for letters patent for another ferry between the city and Nassau island to the south of Fulton ferry. On the fifth of February, 1708, the mayor, aldermen, and commonalty of the city of New York presented their petition to Gov. Canbury protesting against the grant of any ferry as prayed for by Seberingh, on the ground that the ferry between the city and Nassau island had been theretofore granted to them by the crown and was now their property, and that to grant the petition of Seberingh would destroy their ancient ferry, and remove the chief income and support of the corporation. This petition led to the refusal of Seberingh's request, and a petition of the city, presented April 8, 1708, effected the granting of what is known as the ‘Canbury Charter,’ dated April 19, 1708. That charter was asked for and granted upon the theory...

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31 cases
  • The State ex rel. Star Publishing Company v. The Associated Press
    • United States
    • United States State Supreme Court of Missouri
    • January 25, 1901
    ...the public highway; and for so operating such ferry, the owner was permitted to take such rates of toll as the law allowed. [Mayor v. Starin, 106 N.Y. 1, 12 N.E. 631, and cases Thus, with respect to mills, the lords of the manor having erected mills on their respective domains for the publi......
  • State v. Faudre
    • United States
    • Supreme Court of West Virginia
    • November 14, 1903
    ...v. Taylor, 1 Black, 603, 17 L. Ed. 191; 2 Wash. Real Prop. (6th Ed.) § 1215; Huzzey v. Field, 2 C. M. & R. 431; Mayor, etc., v. Starin, 106 N. Y. 1, 12 N. E. 631; Newton v. Cubitt, 12 C. B. 31. A ferry right is separate and distinct from, and subordinate to, the right of navigation. Tied. L......
  • State v. Associated Press
    • United States
    • United States State Supreme Court of Missouri
    • December 18, 1900
    ...public highway; and for so operating such ferry the owner was permitted to take such rates of toll as the law allowed. Mayor, etc., v. Starin, 106 N. Y. 1, 12 N. E. 631, and cases cited. Thus, with respect to mills, the lords of the manor having erected mills on their respective domains for......
  • Brooklyn & Richmond Ferry Co. v. United States
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    • March 30, 1948
    ...New York v. Nixon, 229 N.Y. 356, 361, 128 N.E. 245. 7 Benson v. Mayor, etc. of New York, 10 Barb. 223, 240, 242; Mayor, etc. of New York v. Starin, 106 N.Y. 1, 11, 12 N. E. 631; City of New York v. New Jersey & S. I. Ferry Co., 92 Misc. 40, 41, 155 N. Y.S. 937; affirmed 173 App.Div. 496, 15......
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