The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1873-04-09
WHEELING DAILY ITELLGKNCER MORNING APRIL 1878

It seems to us that 1t would be an un-
Just reflection upon the intelligence both
Of Congress and the Trainer of these sec
tons, to claim that either Of them intend.
ed by these words ITO have and main
tam" 10 invest the Bridge Company
with a toll franchise, or by any part Of
these sections.
The conclusion Of this, thea, Is, that the
W. and B. B. Co., although owning the
bridges since the passage Of this act OF
Congress, but subject to postal uses, have
not, nor never had any lawful right 10
collect tolls for passing over the same.
We will now briefly examine the legal.
ity Of the claim made by tho Bridge Com.
p6ny, they that own aud possess the ex.
elusive and subsisting ferry franchise to
and from the Island,
They make this claim under a deed
made 10 them by D. and E. Zane and their
trustees, dated September 10, 1915.
1t Is true that such ferry franchise as
belonged to the grantors, was so con-
veyed. Yet, nevertheless, 1t does not
follow that the Bridge Company still have
or own such an exclusive franchise, or
any franchise at all. And this, because
such ferry franchises are and were Tor.
teitable for the disuSe Of them, both at
common law and under the statutes Of
the1States Of Virginia and West Virginia.
In the Code Of Virginia, Of 1649, page
1888, we find this law Every ferry estab.
lished and not discontinued before the
commencement Of this act, may continue
to be kept; and the rates of ierriage at
every such ferry shall be according TO the
laws applicable thereto before such CON-
mencement, 80 far as not altered by or
under some provision Of this chapter.
But any such Jerry which shall be disused
for two years and six months, shall, by
reason Of such disuse, bsipSO tact0 discon'
tinued."
This has been the law Of the States Of
Virginia and West Virginia ever since
| 1916, and substantially the same In the
former since 1910. See Codes Of Va. of
1910, 1849 and 1860, and Code of W. Va
That the Bridge Company has not had q
ferry here at all, except when building or
repairing their bridge, and at least, have
had none for the last fifteen years or more,
is a fact well known to every one.
a There Is no law making bridge sub
stitute Tor ferry, and the substituting Of
the one for the other has always been
done, as the laws Of this State will show,
by special legislative permission, and
which, so far aswe know, has neverbeen
given in this case.
The conclusion, then, must be that this
ferry has been discontinued In law, by its
disuse for two years and Six months, on
the part OF the Bridge Company, and the
right to establish one has reverted to the
State, TO be exercised in establishing
another, as provided Tor in the present
law.
The next question In this con-
.nectlon Is: If Vthe Bridge Com
pany has lost the right in law to keep
and run ferry from the Island, do they |
still own the exclusive right to use the
shores and beach of the Island, or any
part thereof, for ferry landingsP They
cannot, because such exclusive right was
only conferred by law, Gfit was confer
rcd at all upon the Zanes) on the
condition that they and their grantees
would continue to keep and run
the ferry as the law required it should |
be kept and run; and being condition,
1t fails, when the thing upon which it was
conditioned fails.
1t would not only be contrary 10 law,
but it would DO absurd to suppose that
the Legislature would confer the exclu.
sive right to use the shores OF tho Island |
for ferry landings without makingit con.
ditional upon the keeping and conLinu-
ance of ferry. The Legislature could
confer no such right.
That this has been the construction Of
such rights by the Legislature of West
Virginia, is manifest by the 9th section
Of chapter Al Of the Code, which reads:
"No Board OF Supervisors shall grant
leave to establish over q water course u |
ferry within half mile Of any other ferry
legally established over the same water
course, except on the 0hioriver. =
Ferries over the Ohio river may be estab.
lished at any place the Board may deter
mine" Sec also section 25, page 1916 of
Code Of Virginia, 1860. We here see that
If the Zsnes or the Bridge Company ever
had any such an exclusive right, it has
been long 0go taken from them by both |
Of the States; and that the States had the |
power to do so, cannot be questioned un-
der the decision of the courts.
It will be noticed that the Zanes and
their trustees did not convey to the Bridge |
Company any fee in the soil Of the shores |
OF the Island or any part thereof, except, |
perhaps, that upon which the abutments |
rest, but simply right coupled with the
ferry franchise which they owned.
In this connection, 1t may be as well TO |
notice another claim some times made by
this Company: That no other bridge can
BIO built from the Island over either
branch ofthe river without their consent.
Such n claim, If ever seriously made,
must BIO In Ignorance, both of their 80.
called charter and the law relating there
10. For if their charter was an operative
one, there is nothing in 1t comforting up.
on them the exclusive right to bridge the
river at this place, nor has any such
right been conferred upon them by any
general laws Of the States Of Virginia or
West Virginia; nor has such right any
existence either In the common or consti-1
tutiOnal law Ofthe country; for 1t is well
settled therein that in o case like this
where there has been no exclusive right
expressly conferred by the charter to
bridge the river, the proper legislative
body can, at any time, authorize the cree
ton OF as many bridges by and near this
one, as to 1t may seem necessary for the
convenience Of the public. And the pres.
ent current Of the authorities 60 even fur.
ther, and treat all such exclusive grants
or contracts made by the States invalid,
because destructive Of the perpetuity Of
the sovereignty Of the States, inasmuch
as by such legislation the Legislatures
might trifle away the most, if not all Of
the important righ and privileges Of the
people, and place them In the hands oil
individuals and soulless corporations, for
ever beyond the control offuture Legis-
latures. See Cooley's Con. Limitations,
PIP. 2s0, 1885, Redfeld on Railways led
ed.) vol.1, p. 1858; Greenleat's Cruise on
Real Property, vol, 9, n, OF, note: Charles