#### JOHN A. TAYLOR *v.*THE WILMINGTON AND MANCHESTER RAIL ROAD COMPANY.

The right of a ferryman to his toll, is by the common law, and every subtraction from his profits, by carrying his *customers*over the same stream, whether for pay or not, is an injury for which he may recover damages.

'The customers of a ferry are those wishing to go along the highway, of which the ferry constitutes a part, and whom he would be bound to transport on being called on by them, and not such as wish to travel from one of the ferry landings to a point out of the highway.

The Act of Assembly, Revised Code, ch. 101, sec. 30, recognizes the common law remedy, and further gives a penalty of two dollars for every transportation of passengers, &a, within ten miles of an established ferry, *if done for pay.*

The object of the private Acts of Assembly in favor of William Dry, passed in 1764, and of Benjamin Smith, in 1784, was to effect a communication between the towns of Wilmington and Brunswick, by means of two ferries and a road over Eagle’s island, between them; and the customers to these ferries, would be only those designing to travel along this highway, or a part of it, and would not include one designing to pass from one of the ferry landings to a point on the island not in the highway.

ActioN on tbe case, tried before bis Honor, Judge Peeson, at tbe Spring Term, 1857, of New-Hanover Superior Court.

Case Ageebd.

Tbe plaintiffs declared against tbe-'defendants for violating bis franchise by carrying persons over tbe nortb-east branch of tbe Cape Pear Eiver, from tbe town of Wilmington to Eagle’s Island. This Island is in 'the said river, opposite Wilmington, and is more than a mile across. Tbe branch of the river next to Wilmington is called tbe *North-East River,*and that on the other side of tbe island, is called tbe *North- Wist Rimer.*Tbe dividing line between tbe counties of New-IIan-over and Brunswick is the middle of the Cape Pear Eiver, and divides tbe island into two parts. Tbe old town of Brunswick, which is now in ruins, stood on tbe western shore of tbe *North West,*opposite to Eagle’s Island. The plaintiff ■claimed tbe sole and exclusive right of carrying persons, &c., across the two rivers, and to charge separately for each ser*278vice, and admitted the obligation of keeping np the road between them. This authority was conferred upon those under whom he claimed, by various Acts of the General Assembly, and was continued by deeds of conveyance down to himself. The portions of the said Acts, material to this question, are as follows:

“ *An Act to encourage and empower William Dry to make a public road through the great island opposite to the borough of Wilmington.*

1. “ Whereas a road through the great island, opposite to the borough of Wilmington, will be very beneficial to travel-lers going to and from South Carolina, and to others going to the town of Brunswick, and up the North West River of Cape Fear, and the said Dry being anxious to make and finish the same,

2. *Be. it enacted by the*Governor, *Council and*Assembly, *and by the authority of the*same, that William Dry shall, within six months after the passing of this act, stake and lay off, or cause to be staked and laid off, a road through the said island, beginning at his land, on the said island, opposite to *Market*street, in the said borough, and running westardly the nearest and most convenient way across the North West river.”

(Section 3rd prescribes the dimensions of the road, and provides for its completion within three years, under a penalty of two hundred pounds.)

4. “ And to encourage the said William Dry to make and finish the said road, *be it further enacted by the authority*aforesaid, that, in consideration of the said Dry’s making and finishing the road as aforesaid, the ferries to he kept on both sides the North East River, opposite Market steeet, in the borough of Wilmington, and all perquisites and profits therefrom are hereby vested in the said William Dry, his heirs and assigns forever; and the said William Dry, his heirs and assigns, shall, and may hereafter receive for transporting passengers, their horses and effects, over each of the said ferries, the following rates, &c. * * *

*2797. *And be it further*enacted, that if any persons shall, for fee or reward, contrary to the intent and meaning of this Act, transport, or carry any person, or persons, their horses, carriages or effects, over either of the brances of the Cape Fear river, in order to his or their passing through or over the said island, such person or persons so offending, shall, for every offence, forfeit and pay the sum of twenty shillings, to be recovered by warrant from any justice of the peace. * *

Passed in the year 1764. Tide Martin’s Col. of private Acts, 45.

“ *An Act to encourage*Benjamin Smith *to repañr and complete the bridges cmd causeways through the great island opposite Wilmington.*

Whereas it appears that the encouragement formerly granted to William Dry for making a public road through the great island, opposite to the borough of Wilminglon, was totally inadequate for the purposes intended, and the inferior Court of Brunswick have unanimously raised the rates of ferriage to and from the beforementioned island, and recommended to the Legislature to grant unto the proprietor of said ferries such encouragement by law as may be necessary to finish a very laborious undertaking, which will be attended with great public utility:

“ II. *Be it therefore enacted Try the General*Assembly, &c., that Benjamin Smith, his heirs, &c., shall, within three years, finish and complete a good and sufficient road through the island, (specifying the particulars of construction,) under the penalty of £500,” &c.

“ III. And for the good encouragement of the said Benjamin Smith to finish and complete the road, * * *be it enacted,*&c., that in consideration thereof, he, the said Benjamin Smith, &c., shall, and may, receive for transportating passengers, &c., over the North West and North East rivers, the following rates, * * (specifying the rates,) and for going over one of the said rivers, half the said rates.

“ Y. (Provides a penalty for -the said Smith’s failing to *280keep tbe road and its appurtenances in repair, as overseers on public roads are bound.)

“ VI. *And he it further*enacted, &c., if any person or persons, shall, for fee or reward, contrary to tbe intent and meaning of this Act, transport or carry any person, &c., over either of the branches of Cape Pear river, in order to his, or their, passing through, or over the said island, such person * * shall, for each offence, forfeit and pay the sum of five pounds.” Passed in 1781. Martin’s col. Private Acts, p. 140.

Mesne conveyances from Smith to W. W. Jones, and from him to Cowan, from Cowan to plaintiff, from the plaintiff to the defendants, from them to Shulken & Prigge, and from them back to plaintiff, are put in the case as evidence ; but it is not deemed necessary to describe them further than to say, that the deed from the defendants to Shulken & Prigge contains exceptions and reservations, which the defendants contended protected them in the business done by them upon the river, which the plaintiff complains of; but as the decision of the Court turns upon another point, it is not necessary to set forth the exceptions.

It was admitted, in the case agreed, that the defendants are an incorporated company.

That the town of Wilmington, before 1847, did not extend across the river, (the North East,) but since that time, has been so extended as to include all that part of the island belonging to New-Hanover County, within its limits. Within which part of the said island are situated the plaintiff’s depot, workshops, offices, warehouses, wharfs, &c., a little above the ferry landing; and that here is the terminus (east) of their rail road.

It is admitted in the ease agreed, that, for more than fifty years past, warehouses and wharfs have existed on the eastern side of Eagle’s island, within that portion of it now included in the corporate limits of Wilmington, and for more than forty years steam mills have been in use within the same limits, the owners of which warehouses, wharfs and mills, have kept their own boats, and carried over the river from Wilmington *281to tbeir places of business, their servants, employees, and all persons who desired to visit their places, on business or otherwise, without any claim on the part of the proprietors of these ferries, for damages, or for any penalty, or forfeiture.

It is agreed that the railroad of the defendants had been completed across the North West river', and across the island, to their depot, situated as above stated, on the 1st of January, 1857, and that since that time, and before the commencement of this suit, the defendants, by means of a boat, did transport across the said North East river many persons, of whom some, were their officers, agents, and appointees, passing the said river on the business of the defendants, or their own business, others were persons having business to transact with the officers and agents of the defendants, and others that had no business with the company or their agents, but passed over under that pretence; others were persons that came to attend to the reception of their goods, &c., and to ship the-same from the defendants’ wharfs on the island ; but none of the persons were so transported with a view that they were to use the plaintiff’s road, or to pass through the island..

It was agreed that if, upon the foregoing facts,, the Court should be of opinion with the plaintiff, a judgment should b.e rendered for him, and an enquiry of damages be awarded, as upon a judgment of *nil elicit;*but if the Court should be of a contrary opinion, a judgment of nonsuit should be entered.

Upon consideration of the case agreed, his Honor, being of opinion against the plaintiff, ordered a nonsuit, from which lie- appealed.

Badger, for plaintiff.

JfcwJand *W.*A. *Wright,*for defendants.

Pearson, J.

What are the rights of the plaintiff as the owner of a public ferry, without reference to the exception in the deed of the defendant ? He may recover damages from any one who, without legal authority, erects a ferry across the water between the *same point,*or so near as to draw off *282bis custom. This is a right at common law, and is put on the ground that, as he is bound to "keep up the ferry, he is entitled to such profits as may accrue therefrom in consideration, and as a compensation, for his liability. Consequently any subtraction from the profits is wrongful, and is an injury to him. Herein the case of a ferry differs from setting up a trade, or school, near another; the tradesman or school-master is not bound to keep it up. 3 Black. Com. 219. His right of action is not confined to one who erects a ferry; it is extended, upon the same principle, to any one who, *for pay,*transports a person, or his effects, across the water between the same points, or so near as to draw off liis custom. The same principle extends to any one who thus transports *without pay*; for the gist of the action is the drawing off his custom, and thereby subtracting from profits to which he is entitled. The injury to him is the same, whether the wrongful act be done for pay, or without pay. *Blesset*v. Hart, Willes’ Rep. 508 ; *Tripp*v. Frank, 4 Term Rep. 666. The important question, that upon which our case turns, is discussed in the latter case. The opinion is expressed that the persons must be those who wish to go along the road of which the ferry makes a part, so that the act of the defendant in transporting them a little above or below the ferry, is *& fraud*in evasion of the plaintiff’s rights, and it is decided that the action would not lie on that case, “ because the persons transported were substantially, and not colorably, carried over to a different place.” The plaintiff’s ferry was from Kingston to Ba/rton; the defendant carried the persons from Kingston to Barrow, two miles to the east of the former place. The persons did not wish to go to Barton, and the plaintiff was not bound to carry them to Barrow. The Court say *“*his right is commensurate with his duty;” as he was not bound to carry them to Barrow, he can not complain of the defendant for doing so. It would be unreasonable to require them to submit to the inconvenience of being carried first to Barton, and thence making their way to Barrow. So, the plaintiff’s *customers*are really those who wish to go from Kingston to Barton.

*283In tbe assertion of tbis right, many difficulties were presented : "What distance was so near to a ferry as to draw off its custom? Who were customers? What damages was the plaintiff entitled to ? — the toll which the plaintiff would otherwise have received? — or such toll, *minus*the cost of transportation? Were these matters to depend on the leaning and feeling of each particular jury ? To remove these difficulties, the Act of 1761 (Eev. Code, ch. 101, sec. 30,) provides, that if any person shall, without authority, keep a ferry, or transport, *for pay,*any person, or his effects, across a river or water, within ten miles of a public ferry, he shall pay a penalty of two dollars for each offence, to be recovered by the nearest ferryman, &c. This statute recognises the common law right against a person who erects a ferry without authority, or transports a person, or his effects, for pay. The remedy is cumulative; it fixes the distance at ten miles; the damages at two dollars; and extends the statute remedy to all persons transporting *for pay, without reference to their being customers.*

It was thought by some that the statute, by inference, denied the common law right against a person who transported any person without pay. The point was made by the case of *Long*v. *Beard,*3 Murph. Rep. 57. It is there held that the statute is cumulative in regard to the remedy, and left the common'law rights of ferrymen untouched; and it was decided that the plaintiff had a right of action against the defendant for erecting a *free ferry*within one mile of his ferry, and opening a road on both sides of the river leading to, and from the road of which his ferry made a part, to wit, from Salisbury on one side, to Thompson’s tavern on the other, and thence to Salem and Danville, whereby the plaintiff’s custom was drawn off, and his profits diminished,- by inducing horsemen, and other travellers, and wagons, and other carriages, passing and repassing from Salisbury to Thompson’s tavern, to go by the free ferry. The decision is put upon the ground that all horsemen, and other travellers, wagons, &c., passing and repass-ing between the *termini*of the road, are customers; so that, *284if such customers are drawn off, the distance of the new ferry from the old one is not material, and it only becomes so in reference to the question, is it so near as to draw off custom to which the old ferry is entitled ?

The principle of that case extends to one who transports a person, or his effects, *without pay,*provided custom to which the plaintiff is entitled is substracted; but such facts must be alleged and proven, as show that the person transported was one who would, otherwise, have passed over the road of which the plaintiff’s ferry makes a part; in other words, that the *t&rmmi*of the plaintiff’s ferry were between the points of such person’s departure and destination — were in his route, and would have been passed by him, but for the defendant’s wrongful interference. Hall, J., calls attention to the fact, that every man who crosses a river at a point near a ferry, is not a customer of the ferry, *“*otherwise no person could set his neighbor across in a private boat.”

"When it is recollected that the statute forbids the transportation of persons who are not customers, as well as those who are, it is easily seen why it is restricted to a transporting *forpa/y.*Had it extended to a transportation without pay of persons other than customers, it would have worked a grievous evil by interrupting neighborhood intercourse, and it was supposed that cases of gratuitous transportation of customers would rarely occur, and if it did, the common law remedy would correct it.

Our case then, is narrowed to this — were the persons who were transported by the defendant, from Wilmington to the depot on the island, customers of the plaintiff’s ferry ? The *tw'mvni*of his ferry must be fixed by reference to the charters, and the purpose for which they were granted.

Eagle’s island lies between Wilmington and the old town of Brunswick. It is some mile and a half in extent — low and marshy — fit for lice fields, and not passable by carriages, or horses. The purpose of granting the charter to Dry, in 1764, and continuing it to *Smith,*who had succeeded to his rights, in 1784, as is set out in the two acts or charters, was to get a *285road made across the island, so as to effect a communication, between tbe towns of "Wilmington and Brunswick. The road and the two ferries make one public highway from the one town to the other; the obligation to repair the road is the same as to keep up the ferries ; but it was expedient to subdivide the toll, and allow it to be taken for passing either ferry ; in the same way as toll gates are erected at convenient distances on a plank road, or turnpike, because persons might wish to cross the river at Wilmington, go over the road to the river opposite to Brunswick, and then go up the river without crossing it, or to cross from Brunswick, go over the road to the landing opposite Wilmington, and then go up the river, or leave their horses and vehicles at the landing, and cross over to Wilmington as *foot*passengers; and a penalty of twenty shillings is imposed for *transporting, for pay,*any person, &c., over either of the branches of the Oape Fear river, *in order to Ms passing through the island.*If we consider each ferry as a separate establishment, each still retains its connection with, and reference to, the road, and the *termini*of the ferry under consideration-, are the town of Wilmington and “ a point opposite Market street,” *where the road leads of.*This is the plaintiff’s landing — the place to which he is bound to carry persons, &e., and his customers are all persons who wish to cross from Wilmington to that place; these he is bound to serve ; but suppose a person wishes to go to a steam saw-mill on the island, half a mile from this point; the plaintiff is not bound to cany him there ; “ his rights are commensurate with his duties,” therefore, this person is not one of his customers. It would be ill service to take him to the landing place of the plaintiff, and leave him to get to the mill through the marsh, or hire a boat to take him up !

The defendants’ depot is on the island; some little distance from the road, and “ the landing place ” of the plaintiff. The persons transported by the defendants from Wilmington to the island, did not wish to cross over the island, or to use the road, or to go to the plaintiff’s landing ; they wished to go to the defendants’ depot; but for it, they had no business, or de*286sire to go to the island, and their going was without reference to the plaintiff’s ferry, or the road; so they were not his customers.

It is unnecessary to consider the fact that, for fifty years— ever since the island has been used for rice-fields, or other purposes — every person has been crossing over the river from Wilmington to the place on the island where his business called him, without objection' on the part of the plaintiff, or those under whom he claims: we have seen they have a perfect right to do so; they were not his customers. So the learning about *“*prescription ” and *“*dedication ” has no bearing. It is also unnecessary to consider the effect of the exception in the deed of the defendants. Eor, as the plaintiff has no cause of action without reference to the exception, that cannot giré him one.

Pee Cueiam. Judgment affirmed.