Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1846-06-11

tue precise form originally specIneu, tney take
what, in the eye Of the law is the same thing, an
equivalent The franchise is extinguished, but is
extingushed by purchase and, If auy injustice is
DONE il must consist rather in the arbitrary and
unnecessary exercise Of acknowledged power,
than in any denial or impeachment Of the validity |
Of the grant, or the rights derived from it, The |
proceeding, instead Of questioning or imparing the
obligation Of the contract, recognises and affrms
it, and gives a compensation upon the simple and
only ground. that the rights and property Of the
plaintiffs derived from the gran, are not to be ques
toned.
The general power OF the State 10 reclaim, for |
public use, lands which have been granted to indi-
vduals, will not be questioned but the question
has been agitated elsewhere, and may be started
here whether franchise granted to private persons
for their private emolument, and yet for a public
use, is not beyond the reach Of that power These
cases being Of a mixed character, combining pri-
vaie right and emolument with public convenience,
the question resolves itself into two others, viz
LIST. Arc private rights, thus conferred, Of any
superior sanciiiy
And I'd. Does the partial, qualified, aud limited
appropriation Of the property public use, exclude
the further exercise Of the right Of eminent do
maini
It isimpossible, we think, TO make any distinc-
ton between franchises thus granted and titles to
land derived from letters patent. The same SOW
ereign power exists. The same great law Of public
necessity, demanding that private right should yield
10 public exigency, applies TO both.
The distinction attempted to be drawn from the
supposlon that the citizen takes his grant Of land
knowing and expecting that it may be resumed for
public use. but receives his grant Of franchise
with different expectations, is evidently distinc-
ton without difference, as il is based upon an as.
sumption in every pon, of view erroneous.
The exercise Of this right Of eminent domain,
over franchises created by special grant, is CON-
mon occurrence. Bridges are substituted for fer
ries turnpikes are superseded by railroads and
canals yet, frequent as this occurrence is, it has
rarely been contested.
The power OF the legislature to take franchises,
like other property for public use, has never to my
knowledge, been judieially denied. On the con-
trary. it has often been judicially asserted See
Arlington VS.. Barnet. Is Yer. R., 745.
In Rogers VS.. Bradshaw, 90 John, 742, the
al encroached upon and took portion Of the turn
pike, and the latter encroached upon the adoin-
ing land yet the right Of the State was sustain
ed
Ia the case of Charles River Bridge vs. Warren
Bridge, the ferry, which was the property of
private corporation, was superseded by the bridge.
In the case between the Boston Water Power
Company and the Worcester Railroad, % Pick,
O. $780, the power of the Legislature over franchises
is expressly asserted In that case the franchise
was not, indeed, annihaied, but was diminished
in value, and impaired. If the legislature could
take portion ofthe franchise, they could doub-
tess take the whole if the exigency required it,
1t is TO be borne in mind that the real estate Of
the plaintiffs was not derived from the grant of 1885,
nor it acquired by the aid of the power of the
State; authority being conferred by that act TO
take private properly without the owners assent.
The taking the land, therefore, if it conflict with
any grant, conflicts with The original grant from the
British crown, made prior to the Revolution, If
it come in collision with the grant Of the franchise,
it is only incidentally and consequeniially.
Unless, then, the legislature, by the grant Of the
franchise in 1885, parted with the right Of eminent
domain over the place where the franchise was TO
be exercised, the taking the land for public
must be conceded to be lawful.
II, them the land can be taken, could not the
same power take the franchise, which is merely
incident to it,
If we advert to the act Of 1906 we shall find
that the franchise consists in the right to take toll
upon a bridge to be maintained by the plaintiffs,
upon their own land, and at their own expense
Now, If the bridge itself passes from them in legal
way and they cease TO maintain ii, the right TO
take toll ceases
The case, then is not one in which the grant Of
the franchise is revoked annulled by the legisa-
ture in bad faith, but in which the public, hav
ing acquired the rights Of the plaintiffs the further
exercise of the franchise is neither reasonable
just.
1t was argued in the court below that the fran
chise is not annexed TO land, therefore "could not
be taken, but where the right is given to take
land"
The franchise, by the grant, might be exercised
at any place within four miles of the mouth Of the
river. The proceeding in question merely pro-
hibils its exercise in this particular place. leaving
it to be enjoyed elsewhere, lift be of any value to
the plaintiffs In this view, the case falls precisely
within the decision in the Boston Water Power
Company vs. Worcester Railroad Odd Pick,
$780,
The plaintiffs, however, had given location to
it, and its exercise elsewhere being probably of no
value, the case was treated by the State court
practical extnguishment Of it, and compensation
made accordingly.
In this view Of the matter, the franchise still
subssis, impaired only by the establishment Of a
public highway in this particular place.
Does the partial aud qualified appropriation Of
the plaintiffs property to public use exclude the
exercise Of the right Of eminent domain by the
State
1t is to be observed that the land of the plaintiffs
had never been taken by the sovereign power for
! public use until the proceeding now in question
was instituted Ii was voluntarily devoted TO that
use by the plaintiffs, with view to the enjoyment
| Of the franchise
The property is still private, and the public use
il only by paying an equivalent, in the form OF
toll.
Were il otherwise, il would be difficult to make
out that partial exercise Of the right of eminent
domain exhausts the power, or that property being
devoted TO public use, the sovereign power cannot
regulate modify, or control that use. The fact OF
such devotion comes rather in aid, than otherwise,
ofthe public right.
Whether, therefore, we have regard TO the fact