People's Ferry Co. v. Casco Bay Lines

• Decision Date: 30 January 1922
• Citation: 115 A. 815
• Parties: PEOPLE'S FERRY CO. v. CASCO BAY LINES.
• Court: Maine Supreme Court

115 A. 815

PEOPLE'S FERRY CO.

v. CASCO BAY LINES.

Supreme Judicial Court of Maine.

Jan. 30, 1922.

Report from Superior Court, Cumberland County, at Law.

Action by the People's Ferry Company against the Casco Bay Lines. Case reported. Judgment for defendant.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, and WILSON, JJ.

William H. Murray, of Portland, for plaintiff.

Nathan W. Thompson and A. S. Littlefield, both of Portland, for defendant,

CORNISH, C. J. The plaintiff corporation owns and operates a steam ferry between Portland pier in the city of Portland and the ferry slip at Peak's Island in Casco Bay. The defendant corporation owns and operates a line of steamboats running between Custom House wharf in the city of Portland and Forest City landing on Peak's Island, as well as between various other points on the islands of Casco Bay. The two wharves in Portland are about 125 feet and the two landing places at Peak's Island about 40 feet apart.

This action on the case is brought to recover damages in the sum of $15,000 because of the alleged unlawful transportation of passengers and property for hire by the defendant between June 1, 1920, and the date of the writ, and the consequent interference with and injury to the alleged exclusive right of the plaintiff to maintain and operate its ferry between the points aforesaid. The case is before the law court on report for the purpose of determining simply the question of liability. If this action is maintainable, then it is to be sent back to the court at nisi prius for the assessment of damages. If it is not maintainable, then judgment is to be rendered for the defendant The material facts are not in dispute. The plaintiff's right of recovery rests wholly upon its claimed possession of exclusive rights of transportation between the two points in question, and the solution of that question will determine this action.

It is therefore imperative to inquire from what source these alleged exclusive rights have been acquired by the plaintiff because their existence is not to be assumed. Monopolies are not favorites of the law.

1. In the first place it is unnecessary to determine or consider the rights and remedies of a ferry existing at common law, because no common-law rights are here involved. All ferries in this state are governed, not by common law, but by statute—it may be by the general statute regulating the establishment, licensing, and control of ferries by county commissioners, as set forth in detail in R. S. c. 27, §§ 1 to 13, inclusive (Peru v. Barrett, 100 Me. 213, 60 Atl. 968, 70 L. R. A. 567, 109 Am. St. Rep. 494, where the court say, "The only proprietorship in a ferry in Maine is the franchise conferred by statute"), or it may be by special acts of the Legislature (Day v. Stetson, 8 Greenl. [Me.] 365).

2. The general statute (chapter 27) has no application here, because the plaintiff's ferry was not established by the county commissioners of Cumberland county under that statute.

A casual reading of section 5 of that chapter might lead one to think its provisions were applicable, but they are not. That section provides as follows:

"When a ferry is established by the Legislature to be passed by a steam or horse boat, no other ferry shall be established on the same river within one mile above or below it."

When the original act regulating ferries was passed in Maine (Laws 1821, c. 176), steam ferries were unknown. Their use was subsequently recognized and authorized when established, not by county commissioners, but by the Legislature (P. L. 1830, c. 457), and in 1842 the act, which has been condensed into section 5, above referred to, was passed. It was in these words:

"Where a ferry has been established, or may hereafter be established by the Legislature, on which a horse boat or steamboat is to run, the county commissioners shall not have power to establish another ferry on the same river within one mile above or below the place of such horse or steam ferry." P. L. 1842, c. 16.

In the revision and condensation of 1857 (chapter 20, § 5), which has remained in the same form throughout all subsequent revisions, the fact that the "other ferry," which is prohibited after the establishment of a steam ferry, means one established by the county commissioners, is not specifically expressed, but those words are necessarily implied, considering the origin and history of the section.

"A change in phraseology in the re-enactment of a statute in a general revision does not change its effect, unless there is an evident legislative intention to work such change." Martin v. Bryant. 108 Me. 253, 80 Atl. 702; Glovsky v. Maine Realty Bureau, 116 Me. 378, 102 Atl. 113; Camden Auto Co. v. Mansfield, 120 Me. 187, 113 Atl. 175.

The purpose of the Legislature was to prevent conflict of authority, and, after a ferry had been established by the Legislature, not to allow the county commissioners to establish another within the prescribed limits. The plaintiff corporation therefore acquires no rights in this case under chapter 27, § 5.

Nor is it benefited by section 6 of the same chapter, which grants a remedy to an established and licensed ferry against any party transporting without authority persons or property for hire across such established and licensed ferry. This section is in substantially the same form as in the original Ferry Act of 1821, § 4, and applies to ferries established and licensed by the county commissioners. We may therefore eliminate R. S. c. 27, the General Ferry Act, as granting any rights or remedies of avail to the plaintiff here.

3. The plaintiff corporation was established by special act of the Legislature and we must therefore examine its charter, and the subsequent amendments thereto, to ascertain the scope and limits of its rights and powers.

The original act of incorporation is chapter 495 of the Private and Special Acts of 1885, and under that act the People's Ferry Company was authorized to establish, set up, and maintain a steam ferry across Fore river, between Ferry Village in Cape Elizabeth and the city of Portland. Rates of toll were established and certain rights and duties were prescribed, together with the right to acquire by lease, purchase, gift, or in some other lawful manner the necessary property and equipment; but no exclusive right to maintain such ferry was granted, or even intimated, and that route was not the one under discussion here.

4. By chapter 277 of the Private and Special Laws of 1907 additional rights were conferred upon this company and its...