The right to tolls usually a part of the privilege,

but it must

as will authorise him to embark and disembark his passengers thereon (h). . . . The right to take toll also from customers is usually a part of the privilege. . . But the right of the Crown to authorise the collection of tolls is viewed by the law with a salutary jealousy; so that no burthen of that kind can be imposed on the public, unless it have (in the language of the books) a reasonable commencement (i), that is, unless it be be founded on an adequate founded on an adequate consideration, as between the public consideration. and the grantee; which consideration is (in the case of a ferry) to keep up a boat for the passage over a stream not otherwise fordable (k). And it is also essential that the burthen be reasonable in its amount (1), for where the tolls granted are outrageous, the franchise is illegal and void" (m).

Two sorts of ferries.

There are two sorts of ferries; one a ferry from one point to another, the other from one vill to another, the ferry in one case being the exclusive right of carrying from one point to another, and in the other the exclusive right of carrying from one vill to another throughout the area of the vills (n).

In the case of a point to point ferry, the exclusive right is only to ferry persons coming along a public way to a landing-place, and desiring to cross to a landing place on the opposite bank, and continue their journey along another public way. It is only in respect of persons using these ways that the exclusive right of ferry exists. It does not matter whence they come, or whither they go. The ferryman has no claim in respect of them unless they come to his passage, nor has he any right to complain if people do not use the approaches to his passage. If persons who do not come along the public paths between which his ferry

(h) Peter v. Kendal, supra.

(i) Stephen's Blackstone, vol. i., p. 683; Mayor of Nottingham v. Lambert, Willes, 116. A charter from the Crown granting all our ferriages and passages over certain rivers conveys only ferries existing at the date of the grant, and does not confer on the grantees the right to create new ferries over these rivers: Londonderry Bridge Commissioners v. M'Keever, 27 L. R. Ir. 464. C. A.

(k) Mayor of Nottingham v. Lambert, Willes, 116; Heddy v. Wheelhouse. Cro. Eliz. 558, 592. In Robertson v. Balmain New Ferry Co. (1909), 26 T. L. R. 143, P. C., where the following notice was posted upon a wharf: A fare of one penny must be paid on entering or leaving the wharf. No exception will be made to this rule whether the passenger has travelled by the ferry or not," the Privy Council held, affirming the Supreme Court of Australia, that a person who had not travelled by the ferry and was compelled to pay a penny on entering and a penny on leaving a wharf could not

recover.

(1) Mayor of Nottingham v. Lambert; Heddy v. Wheelhouse, supra; 2 Inst. 219.

(m) Ibid.; Stat. 1 Westminster, c. 31; 2 Inst. 219; Cro. Eliz. 558, 592, supra; 2 Bl. Com. 37; Willes, 116, supra. For examples of extortionate tolls in reigns of Edward III. and Richard II., see Selden Society, Public Works in Medieval Law, vol. ii., p. xxvi., 306, 308.

(n) General Estates Co. v. Beaver, [1914] 3 K. B. 918; Huzzey v. Field, 2 C. M. & R. 432.

extends choose to avail themselves of the water highway at some other place, he cannot object (o).

The terminus of a point to point ferry on each side of the water is a fixed point and cannot be varied, at any rate to any substantial extent; but in a vill to vill ferry there may be more than one terminus on either side of the water, and the termini may be varied by the ferry owner, but only within the boundaries of the two vills. It is possible that the ferry owner is bound from time to time to vary the termini of a vill to vill ferry to suit public convenience (p).

By The Ferries (Acquisition by Local Authorities) Act, Acquisition of ferries by 1919 (q), with the consent of the Minister of Transport, a local county council, the mayor, aldermen and burgesses of a county or authorities. other borough, and the council of an urban or rural district, may purchase or have transferred to it upon such terms as may be agreed with the owner, any existing ferry, by which is meant any ferry legally established by Act of Parliament or otherwise, and all boats, vessels, landing stages, approaches, apparatus, and other property used in connection with the ferry, which is within the area of the local authority, or which serves the inhabitants of that area (r). The local authority may work and maintain the ferry, and charge such tolls as were legally chargeable before the sale or transfer, or such other tolls as the Minister of Transport may determine, or with the approval of the Minister of Transport the ferry may be freed from tolls (r).

One local authority may join with any other local authority for the purchase, acceptance, working, maintenance, or improvement of a ferry, or may contribute towards the expenses of another local authority with regard to any ferry acquired under this Act (8).

Once a ferry has been acquired under this Act, the local authority must make regulations to protect passengers and the general public from injury, but such regulations do not have any force until they have been confirmed by the Minister of Transport (t). The Act has a saving of all rights of the Crown, and preserves the exemption from tolls of persons when on duty in the service of the Crown, of Crown property when being used in the service of the Crown, and of policemen when on duty, and any mail bags (u).

(0) See Lord Haldane in Hammerton v. Dysart (Earl), [1916] 1 A. C. p. 75.

(p) See Lord Parker, ibid., p. 82.

(q) 9 & 10 Geo. 5. c. 75. This Act is applicable to Ireland (ibid., s. 5), but does not apply to Scotland.

(r) Ibid., s. 1.

(s) Ibid., s. 1. sub-section 3.

(t) Ibid., s. 2.

(u) Ibid., ss. 3. 4.

Rights of

action of parties entitled to

franchise of a ferry.

Consideration

of a ferry.

Where the franchise of a ferry exists, the party entitled to it has a right of action, not only against those who refuse or evade payment of toll when due, but also against such as disturb his franchise by setting up a new ferry, so as to diminish his custom (x), though he is himself liable to a criminal indictment, if, either wilfully or by his neglect of duty, he obstructs (y) the subjects of the realm in the lawful use of such ferry (z).

Thus Blackstone says (a), “ If a ferry is erected on a river, so near another antient 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 all the king's subjects; otherwise he may grievously be amerced (b); it would be, therefore, extremely hard if a new ferry were suffered to share his profits, which does not also share his burthen."

"The consideration for the right of the grantee of a ferry," for the grant said Lord Sumner in Hammerton v. Earl of Dysart (c), “is his assumption of a perpetual obligation towards the public. He is, and must remain, a servant of the public. Neglect does not, ipso facto, destroy the right to the franchise. The proceedings by quo warranto suppose the party in actual, though not in legal, possession, and, therefore, judgment of ouster is necessary to dispossess him. In the case of an abuse of a franchise by negligence, the Crown may repeal the grant by scrire facias or quo warranto, and may vest it in some other person': Bayley, J., in Peter v. Kendal (d). At all reasonable times the ferryman must obligations of be prepared to ferry those who wish to be ferried. He must be provided with a reasonable and sufficient number of men and craft. He must charge only reasonable and uniform tolls. He must carry all peaceable wayfarers who are ready and willing to pay his toll. I know of no right in him to question them whence they come or whither they go, or to discriminate between one person and another who uses the king's highway. He

Duty and

ferryman.

(x) Stephen's Blackstone, vol. i., p. 683; 2 Roll. Abr. 140; Com. Dig. Action on the Case for a Nuisance (A.); Blisset v. Hart, Willes, 503; De Rutzen v. Lloyd, 5 A. & E. 456; 44 R. R. 468; Bridgland v. Shapter, 5 M. & W. 375; Pim v. Curell, 6 M. & W. 234; see also Simpson v. Att.-Gen. (1904), 74 L. J. Ch. 1; A. C. 476, at pp. 489, 490, ante, p. 497, per Lord Macnaghten. As to the setting up of a new bridge taking away custom from another, see Micklethwaite v. Newlay Bridge Co., 33 Ch. D. 138.

(y) Evidence of an obstruction after the suit, and before the declaration, is sufficient to maintain an action for obstructing a ferry: Foster v. Bonner, Cowp. 454.

(z) Stephen's Blackstone, vol. i., p. 684; Willes, 512, n.; Payne v. Partridge, 1 Show. 231; see also Shep. Com., vol. iii., p. 529, n.; Bl. Com., vol. iii., p. 219; Bracton, 1. iv., c. 46; 2 Inst. 567.

(a) Com., vol. iii. (16th ed.), p. 218.

(b) Ibid.; 2 Roll. Abr. 140.

(c) [1916] A. C., at p. 102.

(d) 6 B. & C. 703, at p. 710.

cannot abandon his franchise because it is becoming less profitable or reduce his burthens by restricting his service. He cannot, without the Royal licence, erect a bridge in lieu of the ferry, and therefore give the ferry up: Paine v. Partrick (e). He commits an indictable misdemeanour if he neglects his ferry. He may be prosecuted for a nuisance if he keeps it in a dangerous condition to the public hurt, or sued for a private nuisance by any person who can prove that he has suffered particular damage by reason of its improper state. The ferryman's breach of his public obligations forms no defence to an action which he is otherwise competent to bring, though it is ground for the determination of his privilege. On the other hand, it has been said that the Crown ought not to grant another franchise of ferry, which might prejudice an existing ferry, without causing an inquisition ad quod damnum first to be held, and, if a private person sets up such a rival ferry without the Royal licence, the Crown may proceed. against him by quo warranto: Blissett v. Hart (f), Huzzey v. Field (g). The reason why the law has thus treated the grantee of a ferry as, so to speak, chained to his oar, is a public one. It is no mere desire to keep a monopolist within bounds, and drive with him the hardest of hard bargains. He is a monopolist only rather figuratively, and not in the strict sense of the word. It is in order that the public may have assured to it the perpetual convenience of the ferry, a matter once hardly less important than the right to the use of highways by land, and still in many parts of the country as vital to modern needs as it was in the ages when it originated. This is a weighty consideration. . . where the rival ferry is a private venture, bound by no obligations towards the public at all. If for the sake of the convenience of one portion of the public such a venture be tolerated, there is grave risk that it may cause yet greater inconvenience to another portion of the public, should the old ferryman be starved out, and, being impoverished, be no longer de facto compellable to keep up the old ferry, whatever pains and penalties may be laid upon him. personally."

The origin of the franchise of ferry, and the nature and extent Origin of to which this privilege is protected by the Courts, has been exhaustively considered by the House of Lords in the case of Hammerton v. Dysart (Earl) (h). In that case the respondents claimed an ancient ferry across the Thames at Twickenham, and that the appellants had set up a ferry and carried people across the river about a quarter of a mile away from one of the termini of the ancient ferry. The appellants alleged that they were entitled

(e) Carth. 191.

(g) 2 C. M. & R. 432.

L.W.

(f) Willes 508.
(h) [1916] A. C., p. 57.
33

What is the legal character of a ferry.

Is an incorporeal hereditament.

to do this because their ferry served a different neighbourhood, and was in respect of a totally new and different traffic created by the opening of the Marble Hill Park to the public. The House. of Lords allowed the appeal because the evidence, regarded as a whole, showed that the appellants' ferry was not a disturbance of the ancient ferry.

Lord Haldane said: In Blissett v. Hart the character of the right of exclusive ferry was stated by the Court; ‘A ferry. is a franchise that no one can erect without a licence from the Crown, and when one is erected, another cannot be erected without an ad quod damnum. If a second is erected without a licence, the Crown has a remedy by a quo warranto, and the former grantee has a remedy by action. The franchise is the ground of the action' (i). As the holder of such a franchise is under a legal duty to maintain the ferry for the public benefit, it was natural that, within reasonable limits, the law should give him an exclusive right of ferry.

What is the legal character of this right? The question of what principle underlies and defines the right of exclusive ferry is not an easy one. The expression " monopoly has been used in this connection. Of course, in one sense, the ferryman has a monopoly. But it is not a monopoly within the definition given by Coke in his Institutes (part III. c. 85), which is limited to a grant from the Crown for the sole buying, selling, making, working, or using of anything. It is monopolies in this sense that appear to be struck at by the Statute of Monopolies of 21 Jac. 1. The right of the ferryman is to carry and to take a toll for carriage, and his right is coupled with an onerous obligation to maintain the ferry. It may well be that his exclusive right is given to him as consideration for his undertaking this obligation, and that it is thus that he becomes entitled to what has been popularly called a monopoly. The origin of the right is the prerogative of the Crown, which is the guardian of the public interest. . . . The title is not like that to an easement, which pertains to one tenement and affects another. It is a title to an incorporeal hereditament which exists in gross and originates in a grant. The prerogative grant thus creates in the grantee a franchise which, as was said in Blissett v. Hart, is the ground of his right of action."

With regard to the limits of the franchise and its protection, his Lordship said: "Although the Courts have not, in the case of the franchise of ferry, indicated definite territorial limits as applied in the grant in the same manner as they have done in establishing the seven-mile radius as implied in the franchise of

(i) Willes, 508, at p. 512, n.