Waukeag Ferry Ass'n v. Arey

• Decision Date: 11 April 1929
• Citation: 146 A. 10
• Parties: WAUKEAG FERRY ASS'N v. AREY et al., County Com'rs.
• Court: Maine Supreme Court

146 A. 10

WAUKEAG FERRY ASS'N

v. AREY et al., County Com'rs.

Supreme Judicial Court of Maine.

April 11, 1929.

Report from Supreme Judicial Court, Hancock County, at Law.

Petition by the Waukeag Ferry Association against Milton S. Arey and others, as Commissioners of Hancock County. Remanded, with directions.

Argued before WILSON, C. J., and PHILBROOK, DUNN, BARNES, BASSETT, and PATTANGALL. JJ.

Ryder & Simpson, of Bangor, and Wood & Shaw, of Bar Harbor, for petitioner.

W. B. Blaisdell, of North Sullivan, for Hancock-Sullivan Bridge Dist.

Raymond Fellows, of Bangor, for state highway commission.

H. L. Graham, of Bar Harbor, and D. E. Hurley, of Ellsworth, for county commissioners.

BASSETT, J. This is a petition to the Supreme Judicial Court under the provisions of R. S. c. 82, § 3, which confers upon the court the power of general superintendence of all inferior courts for the prevention and correction of errors and abuses, where the law does not expressly provide a remedy. It was brought to revise and correct the proceedings of the county commissioners of Hancock county in determining the damages suffered by the petitioner by reason of the construction of the Hancock-Sullivan bridge. The case comes by agreement before this court on report, upon the petition, answer, and replication, a copy of the original petition of the plaintiff to the county commissioners, notice thereon, and the report of county commissioners to the state treasurer.

From this record, and two special acts of the Legislature in 1919 and 1921, the following appears:

Chapter 92 of the Private and Special Laws of 1919 authorized by its first section Bradbury Smith and his assigns "to establish and maintain a ferry for the space of ten years from and after * * * February fifteenth, nineteen hundred and twenty-one, between the towns of Sullivan and Hancock, * * * across Taunton Bay, or Sullivan river, so-called, from the terminus of the road now existing on the Hancock shore," with the right to keep and maintain the necessary boats, landings, and other property to operate the ferry. The act established rates of toll, and provided that no other ferry should be operated "within three-fourths of a statute mile above or below the ferry established by this act."

Section 6 of the act provided that the county commissioners should have supervision of all matters pertaining to all apparatus used in operating the ferry and its service, and upon petition and hearing might order the same to be improved, and, if the order were not complied with to their satisfaction, should so determine and decree, and in such case all the powers, rights, and privileges granted by the act should terminate, and the commissioners should appraise the boats, apparatus, and other property used in operating the ferry at its fair value, and the powers, rights, and privileges granted by the act should Inure to and become vested in such person or persons, and their assigns, as the commissioners should appoint, provided such appointee or appointees paid the amount of the appraisal within the time specified by the commissioners. The section further provided: "Said commissioners shall also have the power, at any time, during the continuance of this charter, after petition and hearing when in their judgment the public interest demands it, to revoke all the powers and privileges granted by this act, and thereupon they shall appraise all the boats, apparatus and all other property * * * used in * * * operating said ferry at its fair value and any person who may be appointed to run said ferry * * * under the statutes of Maine shall purchase said property as [at] said appraisal: Provided, however, that if the said Smith or his assigns shall, within a reasonable time, be able to dispose of said property at an advance over the value as appraised by the county commissioners, he or his assigns shall have the authority and right to do so."

Smith established the ferry and maintained and operated it from February 15, 1921, until May 1, 1924, when he lawfully assigned it, the franchise, boats, and entire equipment to the petitioner.

By chapter 120 of the Private and Special Laws of 1921, the towns of Hancock, Sullivan, Sorrento, Gouldsboro, and Winter Harbor were incorporated as a "public municipal corporation under the name of Hancock-Sullivan Bridge District, for the purpose of taking advantage of the provisions of chapter three hundred and nineteen of the Public Laws of nineteen hundred and fifteen" (the "Bridge Law" so called), and of acts amendatory thereto, by applying through its board of trustees "for the construction of a bridge between the towns of Sullivan and Hancock * * * across Taunton Bay or Sullivan river, so-called, from the terminus of the Waukeag Ferry road now existing on the Hancock shore." Section 1.

Section 6 of the act provided as follows:

"See. 6. Damages to be paid owners of Waukeag Ferry; how adjusted. The county commissioners of Hancock county are hereby authorized to determine on petition therefor by said trustees or by the owner or owners of Waukeag Ferry, so called, after notice and hearing, the damages suffered by said owner or owners by reason of the construction of said bridge. When said damages are so ascertained the said county commissioners shall certify the same to the state treasurer who shall forthwith pay the amount thereof to the said owner or owners from the joint construction fund."

Pursuant to this act, a free bridge was constructed in the designated location, completed and opened for public travel May 17, 1920, with the result that the travel by ferry was entirely diverted to and across the bridge, and the ferry business of the petitioner wholly destroyed.

In accordance with section 6 of the act, the petitioner on May 14, 1926, petitioned the county commissioners to determine the damages suffered by it by reason of the construction of the bridge. Notice of hearing was duly given, and the hearing held on June 19, 1926.

At the hearing the petitioner claimed that the county commissioners, in determining the amount of damages suffered, must consider the diminished value of the boats and equipment which were left useless by the construction of the bridge, and the loss of prospective profits from tolls and revenues from May, 1926, when the bridge was opened to the public, with consequent complete and permanent destruction of the ferry business to February 15, 1931, when the right to operate the ferry would expire. Evidence was introduced in proof of these claims.

The commissioners ruled as a matter of law that the petitioner had not suffered any damage within the intent of chapter 120 by being deprived of tolls and revenues and was not entitled to compensation for loss of prospective profits.

They determined that the damages suffered were to six boats amounting to $3,200, and so certified to the state treasurer July 13, 1926.

To correct their ruling and determination, this petition was brought May 16, 1927.

The final question to be determined is the meaning of the words "the damages suffered by said owner or owners by reason of the construction of said bridge," in section 6 of chapter 120 of the Laws of 1921, which may be referred to as the Bridge Act. The Legislature had obviously in mind that the owner of the ferry would suffer damages by the construction of the bridge and expressly provided for their determination and payment. The question presented is therefore not the same as in those cases where the owner of the ferry sought to recover damages by reason of the construction of a bridge, when there was nothing in the statute law, under which the bridge company derived its right to erect and operate the rival bridge, which indicated that the Legislature intended to grant it the authority so to do, but with liability for damages.

Prior questions for determination are: What were the rights of the petitioner under chapter 92 of the Laws of 1919, which may be referred to as the Ferry Act? And how were those rights affected by the construction of the bridge?

All ferries in this state are governed by statute, either by special act of the Legislature or by the general statute regulating the establishment, licensing, and control of ferries by county commissioners, which may be referred to as the general ferry statute, and under which the licenses granted are revocable at the pleasure of the county commissioners. Commonlaw rights of ferries are not involved here, and the general statute does not apply except so far as considered below. Ferry Co. v. Casco Bay Lines, 121 Me. Ill, 115 A. 815.

The petitioner's ferry was established by special act of the Legislature, and we must examine that act to ascertain the scope and limits of its rights and powers.

The petitioner claims, and that is the foundation upon which all its contentions rest, that the Ferry Act granted an exclusive right or franchise to maintain a ferry between the towns of Hancock and Sullivan as located, and for a distance of three-quarters of a mile above and below that point, until February 15, 1931.

The grant of a ferry franchise by the Legislature of a state, unless limited by some general law or some restrictive provision in the grant itself, is necessarily exclusive to the extent of the privilege thus conferred. Miller v. County of St. Clair, 7 Ill. (2 Gilman) 197.

Section 1 of the Ferry Act, taken by itself, granted an exclusive ferry franchise for a term of 10 years. Lewis on Em. Dom. (3d Ed.) § 214. But section 6 provided for revocation during the continuance of the charter, not, as was contended by the county commissioners, at any time, or when in their judgment the public interest required, but "at any time * * * when in their judgment the public interest demands it," and then only "after petition and hearing." In such case the commissioners had not the right, as contended by the county commissioners, but "the power * * * to revoke." And the public interest...