Power v. Village of Athens

• Decision Date: 06 October 1885
• Citation: 99 N.Y. 592,2 N.E. 609
• Parties: POWER v. VILLAGE OF ATHENS and others.
• Court: New York Court of Appeals Court of Appeals

99 N.Y. 592

2 N.E. 609

POWER

v.VILLAGE OF ATHENS and others.¹

Court of Appeals of New York.

Filed October 6, 1885.

E. Countryman, for appellant, George H. Power.

S. Hand, for respondents, the Village of Athens and others.

EARL, J.

This action was commenced by the plaintiff, who, as lessee from the city of Hudson, claimed the exclusive right of ferriage across the Hudson river between the city of Hudson and the village of Athens, to restrain the defendants from operating a ferry across the river between the same places. The action was referred to a referee, who decided that the plaintiff, as such lessee, had the exclusive right to operate a ferry from the east side of the river at Hudson to the west side at the village of Athens, and that the village of Athens had the exclusive right of ferriage across the river in the opposite direction; and he ordered judgment restraining the plaintiff from operating a ferry from the west side of the river, and the defendants from operating a ferry from the east side. The plaintiff appealed from the judgment to the general term, and from affirmance there to this court.

As we think this judgment must be affirmed, the able opinions written by the referee, and at the general term, in which we substantially concur, render an elaborate discussion of the questions involved upon this appeal quite unnecessary. No person can in this state establish and operate a public ferry for hire without legislative authority. Chenango Bridge Co. v. Paige, 83 N. Y. 178. The legislature, having jurisdiction of the whole subject, may limit a ferry franchise according to its pleasure. It may confer the right to operate a ferry across a river between two places in both directions, or it may limit the right so that the ferry can be operated from one side of the river only. A legislative grant of a ferry franchise across a river from a place on one side to a place on the other side, standing alone, unexplained, would ordinarily be construed to give the right of a ferry across the river between the two places in both directions. Common sense and public conscience would require such a construction. But to determine whether a legislative grant authorizes a ferry in both directions, or only in one, all the language of the grant must be scrutinized, and all legislative acts in pari materia, and the uses under them, and the circumstances of the particular case, must be considered.

An act of the legislature merely granting the right to establish and operate a ferry across any water does not confer an exclusive right so as to deprive the legislature of power to authorize another competing ferry at or near the same place. Whatever doubt there may have been as to this proposition at an early day has been removed, and the law is now well settled. 3 Kent, Comm. 459, and note; Plank-road Co. v. Douglass, 9 N. Y. 444. Before a ferry franchise can be held to be exclusive there must be something in the act granting it showing that such was the legislative intention. Prior to 1829 no exclusive ferry franchise was granted by the legislature to the city of Hudson. Prior to that time there is no language in any of the acts showing a legislative intent to grant such a franchise, and the legislature could at any time grant ferry franchises to other persons without in any way invading the legal rights or vested privileges of the city of Hudson. On the contrary, the act of 1785, c. 83, § 14, and that of 1801, c. 128, § 15, which conferred the ferry franchise upon the city of Hudson across the river from the eastern to the western shore, expressly provided that nothing contained in these acts should be construed to deprive any persons whatsoever of any rights of ferriage which they then had or might thereafter obtain.

We are also of opinion that none of the acts of the legislature to which our attention has been called, authorized the city of Hudson to maintain or operate a ferry from the western to the eastern shore of the river. The acts of 1785 and 1801 authorized the city to establish and regulate ferries from the city ‘to the western shore of the Hudson river.’ The acts of 1829, c. 101, § 19; of 1854, c. 179, § 33; of 1872, c. 468, § 32; and of 1876, c. 379, § 6,-all acts amending or revising the charter of the city of Hudson,-used substantially the same language in conferring power upon the common council of the city to establish and regulate ferries from the city to the western shore of the river. The uniformity of the language used, conferring the ferry franchise from the eastern to the western shore of the river, is quite significant. The legislation in reference to ferries from the western shore of the river bears very strongly upon the legislative intent. There was the act of 1804, (chapter 57,) entitled ‘An act granting to Timothy Bunker the exclusive privilege to ferry on the west side of the Hudson river at the village of Athens, in the county of Greene, for the term of five years,’ which authorized Bunker ‘to set up, keep, and maintain a ferry across the Hudson river from the west side of the river at Athens' upon certain terms and conditions mentioned in the act.

The village of Athens was incorporated in 1805 by the act, chapter 65 of the laws of that year, in section 3 of which it is provided that the trustees of the village may make, ordain, constitute, and publish such prudential by-laws, rules, and regulations as they from time to time shall deem meet and proper, among other things, ‘relative to regulating a ferry or ferries, provided the same shall not infringe the rights heretofore granted to Timothy Bunker.’ It will be seen by subsequent legislation, and the conduct of the city of Hudson and the village of Athens, that this act was deemed to confer some ferry rights upon the village. By section 5 of the act (chapter 114, Laws 1815) it was provided that the common council of the city of Hudson and the trustees of the village of Athens might from time to time, by contract or otherwise, improve the ferriage between the city and the village, and for that purpose might...