#### Alexander Long v. Lewis Beard and Jonathan Merrill.

From Iredell.

The owner of an old established Ferry hath a right of action against him, who either keeps in his neighborhood a free ferry, or a ferry at which he receives pay for transporting people, carriages, &c. he not being authorised by the County Court to keep such ferry, whereby an injury accrues to the owner of the old established ferry.

There are two counts in the declaration: one charges that the Defendants had, without authority from the County Court, erected a free ferry in the neighborhood of the old established ferry of the Plaintiff, and by transporting persons, carriages, &c. at such ferry, had caused great loss of gain and profit to the Plaintiff — The second count is like the first, except that it charges that Defendants made large gains and profits— After a general verdict for the Plaintiff upon these counts, the Court •will not arrest the judgment: for the Plaintiff is entitled to judgment upon either.

The ground of this action is not the gain made by the Defendants, bu the injury sustained by the Plaintiff, m consequence of the acts of the Defendants.

Alexander Long being the owner of an old established ferry across the River Yadkin, on the road leading from Salisbury to Salem, Lewis Beard and Jonathan Merrill made a road to a point on the River one mile below Long’s ferry; and having erected a boat, they transported tra-vellers, waggons and carriages across the river' — they were the proprietors of the land over which they made the road; but the County Court had not recognised it as a public highway, nor authorised them to keep a ferry. Sign Boards were put up, giving notice to travellers that the road led to a free firry. — Long brought an action on the case against Beard and Merrill, to recover damages for the injury which he sustained by reason of their ferry; and there were two counts in the declaration : In the first, it was charged that the Defendants had opened a road, established a ferry and transported persons and carriages across the river so near to the Plaintiff’s ferry, as *58to cause Mm to lose a great portion of the gains, profits and benefits of his ferry. TMs count did not charge that-the Defendants took any pay or toll for transporting persons, &c. — The second count was in all respects like the-first, except that it charged that the Defendants made paid received to themselves great gains and profits by transporting persons and carriages, ike. *

*59This suit was instituted in the Superior Court of Law for Rowan County, and removed for trial to Iredell, where it came on to he tried, at October Term, 1817', and a ver- ;; . ■ diet was. found for the Rlamtm ambfi-is daoplg-es were assessed to two hundred dollars. Wfi¿reupo11;i| hvas contended on behalf of the Defendants, that the judgment should be arrested; for that tlit jury had found a general verdict for the plaintiff, and that upon the first count in the declaration, no recovery could in law be had. The case was ordered to be sent to this Court, where it was argued by Norwood for the Plaintiff, and Badger for the Defendants.

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The first count in the •,.eclaration was as follows :

> “ Alexander Long, of the County of Rowan, complains of Lewis Beard and Jonathan Merrill in custody, &c. For that whereas the said Alexander Long, before and at the time of committing the several grievancesby the said Lewis Beard and Jonathan Merrill hereinafter next mentioned, was and from thence hitherto hath been and still is possessed of a publio ferry, duly appointed and settled by the Court of Pleas and Quarter Sessions for tile County of Rowan aforesaid, situate and being ill the said County over and across the River Yadkin, at or near the mouth of Grant's Creek, on a public road leading from the town of Salisbury on the southwest side of the said river, to a certain House of Entertainment lately in the possession of one Obadiali Smith, and now in the possession and occupation of oneF rederick Thompson, in the County aforesaid, on the northeast side of the said river, and thence to Salem, Danville and other places; at which ferry of the said Alexander Long, by means of the boats and ferrymen kept by the said Alexander, all horsemen and other travellers, Waggons and other carriages, passing and repassing from Salisbuiy aforesaid to and beyond tile said house of entertainment, and from the said house of entertainment to Salisbury aforesaid, crossed and passed the said liver ; and the said Alexander by means of the premises made to himself great gains, benefits and profits : Yet the said Lewis Beard and Jonathan Merrill well knowing the premises, but contriving and wrongfully, fraudulently and unjustly intending to injure, defraud and prejudice the said Alexander in this respect, and wrongfully, fraudulently and unjustly to deprive him of the gains, benefits and profits of said ferry, and to induce all horsemen and other travellers, waggons and other carriages, passing and repassing- from Salisbury afoi’esaid to the said house of entertainment, and from tire said house of entertainment to Salisbury aforesaid, not to cross the said river at the said ferry of the said Alexander, whilst he the said Alexander was so possessed of the said ferry as aforesaid, and is in the receipt and enjoyment of the gains, benefits and profits thereof to wit, on the tenth day of November in the year of our Lord one thousand eight hundred and thirteen, in the County of Rowan aforesaid, the said Lewis and Jonathan did open and clear a way, sufficient for horsemen, waggons and other carriages conveniently to pass and repass therein ; turning out and leaving the said road leading from Salisbury to the *59ferry of the said Alexander as aforesaid, at or near the house of one George Smith, situate on the south-west side of the said river, thence a short distance along an old road leading from that house to a ferry in the possession of John Long, and the'nce turning out of the said old road and crossing the river a short distance, to wit, one mile below tire ferry aforesaid of the said Alexander, and half a mile above tire ferry in possession and occupation of the said John Long as aforesaid : and thence to the said house of entertainment, on the north-east side of the said river ; and from that time hitherto, have and still do keep the said way open and sufficient for waggons and other carriages to pass and repass conveniently therein. And the said Lewis and Jonathan, on the day and in the county aforesaid, did erect and set up posts at the several forks of the said roads and way, with boards thereon directing travellers along the said way to the place where the same crossed and still crosses the said river, and giving notice that there was a free ferry kept there ; and hitherto have and still do keep up the said posts and boards. And the said Lewis and Jonathan, on the day and in the County aforesaid, did provide and keep •n the said river at the place where the way so opened by them crossed and still crosses tire same, a boat sufficient for the carnage and transportation of travellers, waggons and other carriages across the said river, and persons to work the said boat, and hitherto have and still do keep tile said boat and persons to work it at that place. And the said Lewis and Jonathan, on the day and in the County aforesaid, and at divers other days and times between that day and the commencing- of this suit, did transport and convey over and across the said river, by means of the said boat and the persons working the same, at the place where their said way crossed and still crosses the said river, divers and very many persons, waggons and other carnages, travelling- and passing from Salisbury to the said house of entertainment on the north-east side of the said river, and from the said house of entertainment to Salisbury aforesaid, without any iegal right or authority so to transport and convey the said persons, wag-*60gons and other carriages across the said river. By means of which premises the said Alexander hath been and still is greatly injured, prejudiced and aggrieved, and hath lost a great portion of the g-ains, benefits and profits of his said ferry, to which he was legally entitled as aforesaid, to wit, at the county of Rowan aforesaid.”

> In the second count, it was chaiged that they had transported and conveyed persons, waggons and carriages over and across the river without any legal right or authority so to do, “ whereby the said Lewis and Jonathan made and received to themselves great gains and profits ; by means of which said last mentioned premises, the said Alexander had been and still is greatly injured and aggrieved, and hath lost a great portion of the gains, benefits and profits of his said ferry, to which he was legally and justly entitled as aforesaid, &c.”

*60Hall, Judge.

It is admitted that the Plaintiff would be entitled to judgment, if the declaration contained only the count which charges that the Defendants had set up a ferry and transported persons, &c. for pay. But as the other count does not charge that persons, &c. were transported for pay, and as damages have been given generally upon both counts, it is said the judgment ought to be arrested. By the acts of 1779, ch. 10, and 1784, ch. 14, the Plaintiff, as the owner of a ferry, is bound to keep boats, &c. in good repair for the transportation of travellers, &c. and is subject to high penalties for any neglect in this respect. As a compensation for doing what these acts of Assembly require at Ids bands, he is permitted to take pay according to the rates fixed by the County Courts. Now it is a matter of indifference to the Plaintiff, whether the Defendants transport people and carriages across the river for pay or without pay : the effect is the same to him ; he is injured, his profits are diminished, whilst the obligation upon him to keep up his ferry remains the same.

But it is said, it would be a hard case if no person were at liberty under any circumstances to set his neighbour across the river in a private boat, unless it be for the private use of the owner of said boat. It certainly would be a hard case, if such were the law. But it is clear that in such a case, an action would not lie. When, however, it appeal's that the owner of such a boat opened a way on *61each side of the river, sufficient for .carriages,' &c. to go to the place where the boat is kept, that posts with sign-boards are erected on said roads, directing travellers the way to a free ferry, and by all these means injuring a neighbor who has an old and established ferry, and who is bound by law to keep it up, a special case appears, in which the Plaintiff is undoubtedly entitled to recover. It is further said, that the setting up of such ferries is for the public good. That portion of the public who pass them may think so : but the disinterested part of the public, can think nothing for their good which brings destruction or injury to an individual: and that such destruction or injury must follow, is certain, when we reflect upon the obligations which the Plan tiff is under to keep his ferry in good order, for the transportation of travellers when called upon. Connected with these considerations, is the strong fact, that by the law, the Courts, and they only, are authorised to grant to individuals the privilege of establishing ferries. This privilege lias not been granted to the Defendants in this case. We need not enquire what were the motives of the Defendants in setting up this ferry; whether they intended to benefit the public, injure Long, or finally benefit themselves, is altogether immaterial.

There are no authorities advanced against the opinion now given. The case of Blisset v. Hart,* mentioned in the argument of this case, was an action wrought for an injury similar to the one now complained of; in that case, there were many counts in the declaration, and yet in neither was it charged that the Defendant had received pay for the transportation of travellers. I am of opinion, that upon the facts charged in the first count an action can be sustained, and that judgment should be rendered for the Plaintiff.

Daniel, Judge.

The first count in the Plaintiff’s declaration charges the Defendants with having opened a road, established a ferry, and transported persons and *62carnages across the river, so near to the Plaintiff’s ferry as to cause him to lose a great portion of the gains, profits and benefits of his ferry. This count does not allege that the Defendants took any pay or toll for transporting persons or carriages. The law gives this action, not because the Defendants have derived-a benefit, but because the Plaintiff has sustained an injury, in consequence of the act or acts of the Defendants. The ground of the action is the consequential injury which the Plaintiff has sustained : whether the Defendants have been gainers or losers by the transaction is not to be enquired into. Blackstone, in 3 Com. 219, says, “ If a ferry be erected on a river so near another ancient ferry as to draw away its custom, it is a nuisance to the owner of the old one. For, where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness for the ease of the king’s subjects," otherwise he may be grievously amerced. But setting up a trade, mill or school near another, is not a nuisance, although the custom be diverted from the original establishment $ because a multiplication of such establishments is beneficial to the community at large, and the owners are not by law subject to any fine if they desist fro-n or shut up such establishments.”

The act of 1779, ch. 10, declares, that any person who owns a public ferry and refuses to keep it up for the rates allowed by the County Courts, shall, for every offence, forfeit fifty pounds. The act of 1784, ch. 14, requires the County Courts to take bonds from the owners of ferries, in the sum of five hundred pounds, conditioned to keep good boats and proper' hands to transport persons and carriages ; and declares that any person detained for the lack of such boats and hands, may warrant and recover from the owner j and subjects such owner to actions for all injuries done and property lost by any lack of care at his ferry. The act of 1764, ch. 3, is cumulative, and does not repeal the common law remedy. In consequence of the law having thrown so many penalties upon the owner *63of a ferry, be shall not be molested in bis benefits. I am of opinion that judgment should be rendered for the Plaintiff.

Taylor, Chief Justice, concurred.

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Willes 508..