Power v. Village of Athens

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.

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.

Ho 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 convenience 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 jjari materia and the user 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

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 (Chap. 83, § 14) and that of 1801 (Chap. 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 those 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 (Chap. 101, § 19), of 1854 (Chap. 179, § 33), of 1872 (Chap. 468, § 32), and of 1876 (Chap. 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.

Then, 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 (Chap. 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

We think from all this legislation, without referring to it more minutely, it is quite clear that the legislature intended to place the ferries on the one side of the river under the exclusive control of the city, and on the other side under the exclusive control of the village. All these acts may be regarded as parts of one system, and in pari materia, and must all be considered in arriving at the legislative intention.

The construction we give to the legislative acts is strongly confirmed by the conduct of the two corporations during a long series of years. It does not appear that the city ever asserted the right to any ferry franchise from the western shore of the river, although for many years after 1785, while there was no person or corporation to dispute that right, it did in fact ferry both ways. In or about 1805 Bunker relinquished whatever ferry rights he had to the village. In the year 1806 both corporations made rules and regulations and adopted ordinances in and by which the rights of each corporation to control and regulate the ferry from its own side of the river and to collect and receive the ferriage therefor were mutually recognized. From 1806 to about the year 1815 the village leased the ferry rights from the east to the west shore of the river to various persons and the lessees put on and ran ferry boats, which acts were assented to and acquiesced in by the city. In the year 1815 a ferry boat was purchased by the two corporations on joint account, and from that time up to the close of the season of 1838 ferry boats owned by the two corporations were run on joint account and at joint expense. For a portion of the time the ’ city of Hudson received the sums collected for ferriage for persons and property passing from the east shore, and the village received the sums collected for ferriage from the west shore: and for a portion of the time all the money received for ferriage was put into a common fund and equally

The point is made that evidence from the books of records kept by the village of Athens was improperly received. But no objection was made at the trial that the books were not the original books of record of the village, or that they were not sufficiently proved, and the objection cannot now be taken. The corporations were public corporations and the records contained in such books are competent evidence, and the best evidence, of corporate acts. (Denning v. Roome, 6 Wend. 651 ; Owings v. Speed, 5 Wheat. 420 .) And further, all the evidence from the books could be stricken from the case, and yet the undisputed evidence of the various leases and acts of user by the two corporations, together with the various, acts of the legislature, would require the same conclusion upon the whole case.

It is also objected that the referee erred in granting the defendants any affirmative relief by injunction. But all the facts were proved, and they justified such relief. The plaintiff himself was a wrong-doer in first invading the rights of the defendant, and the referee could, therefore, have denied him all equitable relief on that account. He cannot, therefore, com

The judgment should be affirmed, with costs.

All concur, except Miller, J., not voting.

Judgment affirmed.