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erection of the new, was immense, although the public seems to have been sufficiently accommodated by the Charles River Bridge. The facilities of transportation are not greater than before. The distance between the places is not diminished. The tolls are not lessened, but if they were, the invasion of the elder right would be the more palpable.
On the whole this is an obvious case of breach of contract executed by the party for a valuable consideration. It seems that the tolls of the new bridge are to be paid, at some future day, into the treasury of the state. There will then be an appropriation of private property by the government without compensation, in a case where the property had been itself created by the government now seizing it; and for which they, the government, had been paid with a price. The Supreme Court of Massachusetts seems to have been divided upon many of the points in discussion before them: the important fact, however, was unquestioned, that the Warren Bridge was so near as to operate manifest injury to the Charles River Bridge. Two of the Judges, Morton and Wilde, admitting the injury and interference, lay down the principle that the only covenants on the part of the state, contained in the grant to the first company, were that the company should be permitted to enjoy forever all the rights incident to a corporate body, that is to say, a personal, separate existence, and a guaranty of the franchise and its enjoyment, within the precise limits occupied by the bridge.
Judge Parker was of opinion that the grant of the Warren Company was unconstitutional and void, but that it was so because it made no provision for indemnity to the proprietors of the other grant, (p. 530) that if adequate provision for indemnity had been made, the grant might have been upheld, though invading a subsisting franchise. Judge Putnam dissented from the opinions of the two first mentioned judges, although he seems to entertain the opinion, repugnant as it is to the whole course of his argument, that the legislature may, in certain cases, destroy a franchise on the provision of indemnity.
Judges Morton and Wilde seem scarcely to have considered the question, whether the charter of the Warren Bridge Company could be supported as an invasion of the franchise already in existence. They were of opinion that the locus in quo was not embraced by the grant to the Charles River Bridge Com
pany. Let us examine this position. And first it is admitted that the Warren Bridge is near; that it is injurious, nay, destructive, to the other bridge. But it is said that there are no express covenants which confer an exclusive grant, and that nothing can be raised by implication against the government. But the doctrine that nothing is to be implied against the king, if at all to be recognised in this country as affecting government grants, does not apply to subjects of this character. Upon the maxim ut res magis valeat quam pereat, there are certain things in all instruments which are always implied; i. e. every thing is implied which is necessary to support the contract and carry it into effect. The contrary doctrine would often operate great injury to the government; the exercise of privileges granted, the performance of certain duties, may be the very consideration of the contract, and it may be for the advantage of government that privileges shall be enjoyed and exercised under an enlarged and liberal construction.
Surely it cannot be said that every thing will be implied in favor of the government, and every thing against individuals contracting with it; or that government shall claim the performance of duties without the enjoyment of the full consideration by individuals. The true doctrine, unquestionably, is, that government grants and contracts, shall, like all others, be maintained, if they can be supported by an application of all the principles of construction and of evidence, as in other cases. But an implied guaranty of the corporate existence of the company and certain other implications are admitted, and yet if there is any foundation for the principle contended for by the judges, the exceptions which are made to this rule are entirely gratuitous, and however powerful the reasons may be for recognising these covenants as implied, they are equally imposing in favor of all necessary implications. If the government should ever attempt to enlarge the capital stock, and force new corporators upon the company, it is only an implied covenant that operates their right to do this: and the restraint is no more a necessary one, than the implied covenant not to authorize a rival bridge which is destructive to the franchise. It is said that there is an implied covenant with the company, conservative of the charter within the limits actually occupied by the structure; because it is supposed that a grant which violated those limits would be
VOL. VI. NO. XI.
repugnant to the former, and a direct infringement of the charter. But a grant of a new bridge, to be erected directly by the side of the old, would be equally in violation of the right, for it would destroy it. The injury may be indirect, and therefore fraudulent, but it is complete. There is no express covenant providing for either case, but if the ordinary rules of construction may be applied to grants of this character, every thing will be implied which is necessary to prevent either direct or indirect interference in violation or in fraud of the contract, on the part of the government contracting. It would scarcely be contended that these narrow and confined rules of construction should be applied to conveyances of real estate; and yet the same principles are applicable to deeds of land and grants of a franchise. The maxim alluded to, if admitted in relation to government grants, is not confined to grants of incorporeal rights, but is a rule of general application.
Suppose the government had authorized a company to erect a dam across Charles River, for the purpose of mills, could they make another grant, the operation of which should be to throw back the water so as to destroy the value of the first grant? And yet it might be said that the express grant is only of a dam within the limits occupied by the erection itself, that all implied covenants in support of it were inadmissible, and that as a monopoly, in the free course of legislation the destruction of it might be deemed promotive of the public interests. The case is not to be determined by the application of these narrow and technical rules. It is exceedingly obvious that another bridge, erected near to the old bridge, would, indirectly, destroy the franchise or diminish its value. And it is difficult to discern any sufficient reason for the interference of the party who has received an adequate compensation for the franchise.
Judge Morton very fallaciously argues that the exclusiveness of the franchise extended to the whole of the river between the towns of Boston and Charlestown, or that it was confined to the bounds of the bridge itself, because of the uncertainty which would otherwise attend the settlement of its limits. But this is a question of fraud, submitted to the cognizance of a court of chancery. The uncertainty and vagueness, if any exists, attends the evidence, and not the contract.
Cases of turnpike roads, are adduced to show that consequen
tial damages to rival roads are without remedy; but if a new turnpike is so near that it operates as a fraud upon any older road, it is unauthorized. The subject is not without difficulty. The difficulty is one which attends incorporeal rights, and it could not be avoided, if it should be attempted to make every grant certain to every intent. Fraudulent invasions, especially, it would be impossible to anticipate and provide against.
But the doctrine of the learned judges is wholly unsupported by authority. It is apprehended that prescriptive rights to a market, are subject to the same construction as express grants; for a grant is presumed, such as is coextensive or consistent with the enjoyment. If, in the case alluded to in argument, Rex v. Butler,' the market at Rochester had been created by a grant from the crown, the doctrine of the judges would have been as applicable to the grant as to the case in question; and the analogous argument would have been 'The exclusiveness of the right is determined by the limits of the territory occupied ; there are no express covenants restraining another market near to the first; nothing can be implied against the crown, and a second grant of a market is not a violation of the rights of the first, because the interference is indirect and the injury consequential, however destructive.' But the rule is well understood to be different. A rival market may not be erected near to one already in existence, and whether a rival market is too near is ascertained by an inquiry, as to the fact whether it draws away the custom of the old market: the same test which it is contended is applicable to a rival bridge.
In the case from Levinz, the rival market was only upheld, because upon an ad quod damnum a market at Chatham was found extremely convenient there, and not injurious to that at Rochester, though distant only a mile and a half; and even this injury was not conclusive of the rights of the parties.
All indirect interference with prescriptive ferries is admitted to be in violation of their rights, but if the ferry on Charles River had been prescriptive, a grant would have been presumed such as was actually granted, and no other covenants could be presumed than such as were necessary to uphold the grant or contract. Why then shall any interference, indirectly injurious,
13 Levinz, 220.
be admitted, operating a fraud to a grant of a ferry or a bridge? If there is no foundation for this construction given by a portion of the court, it remains to be examined whether another principle, adopted by Judge Parker, has any better foundation.
Judge Morton, speaking of the resumption of the ferry franchise, is of opinion, (P. 453,) that a 'grant of a franchise may be resumed or seized by the legislature, if public necessity require it. Not for the purpose of regranting the same franchise to other individuals, but that by removing this franchise the public may be enabled to make another compact, having provisions not contained in the former.' Whether the government have power to destroy the franchise of a ferry, for the purpose of creating a bridge franchise, may depend upon circumstances; but that the government may resume a grant of a bridge for the purpose of creating another bridge franchise, or invade any of the rights of the first grantees for the like purpose, is believed to be a position not supported by principle or authority.
In the case of the ferry, a franchise is destroyed for the purpose of creating a different franchise, on the ground of public necessity; in the latter case the franchise is resumed for the purpose of regranting it the identical right to other individuals. The power of the government over the ferry franchise depended in some measure upon the extent of the duties of the proprietors of the franchise. If they could be required to establish a more permanent traject than boats could afford, the legislature had no power to create a new company with coextensive duties ; and it is apprehended that the duties attendant upon the enjoyment of a franchise of this character, are as extensive as the wants of the public, and that the charter is consequently inviolable. But at all events, the proprietors of a bridge franchise are bound fully to meet the public exigency. And no such plea, therefore, can be urged for destroying the franchise or resuming it.
Judge Morton's principles obviously lead to this conclusion, for he founds the lawfulness of the resumption of the ferry franchise upon the consideration, that it was not resumed for the sake of making the same contract with others, but another and a higher compact
Judge Parker adopts the principle that the franchise is not