Long after the license and establishment of a ferry the legislature, by general law, provided that the county courts should not license a ferry within a half mile, in a direct line, of one already established. Held, this general law, so far as it applied to such existing ferry, did not create in it the right to a perpetual monopoly, but was repealable at the will of the legislature.
The purchase of said ferry by the W. & B. Bridge Co., under an enabling act authorizing them to make the purchase, could not enlarge nor add to the ferry-franchise or privileges, nor convert said monopolistic feature into an irrevocable perpetuity in the hands of the vendee, but left it subject to repeal just as it was held by the vendor; and the legislature having repealed it by general law, the W. & B. Bridge Co. have no right to complain, and a new bridge may be erected within the restricted territory, without any violation of vested rights.
One internal improvement company may, in the exercise of eminent domain, take the real estate of another internal improvement company, in the same manner and generally under the same conditions that it may take the lands owned by others, provided the lands proposed to be taken are not necessary to the enjoyment of its franchise by the defendant company; nor will any mere trivial or temporary use by the defendant company be sufficient to protect its land from such condemnation and appropriation.
4. Instructions V erCICT. Where there is sufficient evidence to support the hypothesis of an instruction, and it correctly propounds the law, and is otherwise unobjectionable, it is error to reinsert; but, if this court sees plainly from the record that the party offering the instruction has net been injured by its rejection, the verdict of the jury will not be disturbed on account of the court's refusal to grant it.
Submitting to the jury under our statute "particular questions of fact" is within the discretion of the trial-court, subject to review; but it is not erroneous to refuse to permit such questions to be propounded, when they are immaterial or irrelevant, and unless the answers thereto, if contrary to the general verdict, would control the same and be conclusive of the issue.
Motions to exclude the plaintiff's evidence, or to set aside a verdict, on the ground that it is contrary to the evidence, ought to be overruled, where the court can not grant the same without usurping the functions of the jury.
A. J. Clark and II M. Russell counsel for appellant.
II M. Russell cited:
31 W. Va. 710; 25 W. Va. 538; 27 W. Va 218; 29 W. Va. 140; 13 W. Va. 230; 5 W. Va 118; Code (1868) c. 132, s. 1; 2 Min. Inst. 18; Bouv. L. Diet, "Highway"; 110 U. S. 564; 16 Pa. St. 404; 51 111. 272; 28 N. II. 222; 49 Wis. 162; 53 Wis. 537; 33 Minn. 406; 34 Minn. 227; 70 X. Y. 191; 63 N. Y. 326; 46 N. Y. 546; 43 N. Y. 147; Code c. 135, s. 1; Code c. 42, s. 20; 22 Mich. 201; 26 W. Va 596; 47 Mich. 456; 29 W. Va. 140; Desty Fed. Pro. 692; 121 II. S. 74; 79 Cal. 633; Acts of Va. 1816 pp. 186-190; Acts ofVa. 1846 pp. 149-151; 3 Wall. 51; 17 W. Va. 411; 7 Gratt. 231; Codec. 44, s. 6; 115 U. S. 650; 11 Pet. 420; 13 N. J. Eq. 81; 17 W. Va 825; 20 Graft, 484; 32 Pa. St. 169; 105 111. 511; 22 Minn. 372; 31 W. Va. 685.
W. P. Hubbard counsel for appellee cited: 17 W. Va. 412; 7 Gratt. 231; Acts Va. 1839-40 c. 79 § 1;
16 How. 523; 3 Wall. 51; Cooley Con. Lim. 396; 11 Pet.
420; 9 How. 172; 13 How. 71; 4 Ohio St. 308; 10 S. E.
Rep. 405; Hutchinson's Treatise 916; 17 W. Va. 812.
Lucas, Judge:
The Wheeling Bridge Company petitioned the Circuit Court of Ohio county to condemn, for the purpose of constructing its bridge, twenty five feet of river front of the Ohio river, opposite the city of Wheeling, on what is known as the "Island," or "Zane's Island." The Belmont & Wheeling Bridge Company, an ancient corporation owning and operating a bridge between said island and the city of Wheeling, was the owner of this strip of twenty five feet, and, as cbndemnee, resisted the application to condemn, and the hearing was set for the 21st day of February, 1890.
The defendant company tiled seven pleas, of which three the fifth, sixth, and seventh were on motion rejected, and have been incorporated in the record, and made the subject of exception. These three rejected pleas are as follows:
Plea No. 5: "In the Circuit Court of Ohio county ss: Wheeling Bridge Company vs. The Wheeling and Belmont Bridge Company. Proceeding to condemn land. The said, defendant, for further plea, says that it is a corporation organized under a charter granted by the State of Virginia, for the purpose of authorizing the defendant to erect a bridge across the Ohio river at or near the town of Wheeling, and that, in pursuance of said charter, and the powers and authorities from time to time granted and confirmed by the said legislature of the said State, the said defendant erected, and has for many years maintained, for public use, in consideration of the tolls lawfully enacted by the said defendant, a wire suspension bridge, extending from the eastern shore of the said river at Tenth street, in the said town or city of Wheeling, to the eastern shore of Zane's or Wheeling island, at Virginia street on said island. And the said defendant says that, by the act of the said legislature, the said defendant was empowered to purchase, acquire, and hold all ferry rights and privileges between Zane's island and the main Virginia shore, at the city of Wheeling. And the said defendant says, that in the year 1847 there was, and for many years had been, at the city of Wheeling, between Zane's island and the main Virginia shore, a ferry duly and lawfully maintained and owned by Henry Moore, trustee, Daniel Zane and Daniel C. List, trustee, together with the rights and privileges by law incident thereto; and that on the 20th day of September, in the year 1847, the said defendant, under the authority aforesaid, acquired by purchase and conveyance from the said Henry Moore, trustee, Daniel Zane, and Darnel C. List, trustee, the said ferry, and the said rights and privileges; and that the said defendant has since owned and enjoyed the same. And the said defendant says that its said toll-bridge was erected, and has since been maintained, substantially in the location of said ferry, and that the said defendant, by maintaining its said bridge for the use of the public as aforesaid, and otherwise, lias maintained in full force and vigor the rights and privileges appertaining to the said ferry as aforesaid. And the said defendant says that, at the time when it acquired the said ferry, and the said rights and privileges, as aforesaid, one of the rights, franchises, and privileges incident to the said ferry and the ownership thereof, was the exclusive right to transport persons, animals, and vehicles across the said Ohio river, within the limits of one half mile of said ferry, and that the said defendant acquired the said last-mentioned right, franchise, and privilege, by means of the said conveyance from the said Henry Moore, trustee, and has since owned and still owns the same. And the said defendant says that the said bridge, so proposed to be built by the petitioner, its in the said petition set forth, is intended by the petitioner to be located, and the whole of the said parcel of land in the petition mentioned and proposed to be; condemned is situated, within a half mile of the location of the said ferry, and of the location of the said defendant's bridge. And the said defendant says that the said bridge so proposed to be built by the said petitioner, as aforesaid, is intended by the petitioner to be a bridge for the transportation of persons, animals, and vehicles across the said river. And so the said defendant says that the said petitioner has no right to build the said bridge so proposed to be built by it, as aforesaid, and that its proceedings to condemn the said parcel of land of the said defendant is without authority of law. And this the said defendant is ready to verify. Wherefore, it prays judgment whether the said petitioner ought to have or maintain its proceeding against it. A. J. Clarke and Henry M. Russell, Attorneys for Defendant. "
Plea No. 6: "In the Circuit Court of Ohio county ss: Wheeling.Bridge Company vs. The Wheeling and Belmont Bridge Company. Proceeding to condemn land. The said defendant for further plea says, that it is a corporation organized under a charter granted by the State of Virginia for the purpose of authorizing the defendant to erect a bridge across the Ohio river, at or near the town of Wheeling, and that, in pursuance of the said charter, and the powers and authorities from time to time granted and confirmed by the legislature of the said State, the said defendant erected, and has for many years maintained, for public use, in consideration of the tolls lawfully exacted by said defendant, a wire suspension bridge, extending from the eastern shore of the said river at Tenth street, in the said town or city of Wheeling, to the eastern shore of Zane's or Wheeling island, at Virginia street on said island. And the said defendant says, that by the acts of the said legislature the said defendant was empowered to purchase^ acquire and hold all ferry-rights and privileges between Zane's island and the main Virginia shore, at the city of Wheeling. And. the said defendant says, that in the year 1847 there was, and for many years had been, at the city of Wheeling, between Zane's island and the main Virginia shore, a ferry duly and lawfully maintained and owned by Henry Moore, trustee, Daniel Zane, Daniel C. List, trustee, together with the rights and privileges by law incident thereto, and that, on the 20th day of September,...
