There can be no doubt, but that when a ferry is actually initiated, and in operation under competent authority, the franchise, although public in its operation, is private property, and as such it cannot, when its exercise is free from abuse, be annulled or taken from the owner or lessee without compensation. That was decided in the well considered case of Benson v. TheMayor, c., of New York (10 Barb., 223). But the learned judge, who decided that case, said, that the question of the right to establish new ferries (by the Legislature, or under a subsequent legislative act) was not then before the court, and was not therefore passed upon. The power to establish, license and regulate future ferries is wholly political, and designed as a public trust. It has none of the essential attributes of private property. It can neither be sold nor transferred. It cannot be taken from the donee by an execution; nor is it liable to taxation. It cannot in itself be made the subject of a contract. In other words, it may create property but is not property.
Now, it has long been settled, and very properly, that political powers, conferred upon a municipal corporation for public purposes, no matter how exclusive the grants may be, are subject to subsequent legislative control. It is a frequent practice with our Legislature, to alter the charters of our cities and villages, as to political powers. Some of these are modified, some abrogated and new ones are introduced. Such changes are sometimes made upon the application of the corporate *Page 384 authorities, and frequently without their assent. The several changes in the police system in the city of New York, which materially altered and in fact abrogated some of its chartered powers, were without the consent, and notoriously against the will of its corporation; but they were held by this court to be valid. It is equally well settled, that our Legislature cannot control or restrict its successors in the exercise of its political powers, by anything short of what may be deemed a contract; and, as I have already attempted to show, a devolution of political power upon a municipal corporation, is not a contract. It is well that the rule should be as I have indicated. Such corporate powers, and particularly those which relate to the creation of monopolies, are sometimes exercised greatly to the detriment of the people; but where, as in many cases, the abuse is not of a character to call for a forfeiture by the judgment of a court of law, the evil might be irremediable but for the interposition of the Legislature.
I conceive, then, that the power of the Legislature to create new ferries over our navigable waters, notwithstanding the delegation of a similar power to a municipal corporation in exclusive terms, is indisputable. If, then, the act of the 13th of April, 1840, extended the defendants' railroad, and thereby in effect created a ferry across the river, it is free from the constitutional prohibition against taking away private property without compensation. The second section of that act provides, that "the (defendants) company shall have power to construct one or more depots, at some suitable place or places in the city of Albany, and to connect the same with such" (their) "railroad by a single or double track, with suitable turnouts and branches, with the consent and approbation of the corporation of said city." But it provided that no part of that section should be so construed as to authorize the said company to construct a bridge across the Hudson river, or in any manner to obstruct the navigation of the same. The effect of this enactment was to extend the road to such depot as the company might construct in Albany, the track in that city to be laid with the consent of its corporation. That it was *Page 385 the design of the Legislature so to extend it, is apparent from the restrictions, that the company should not bridge the river or obstruct its navigation. If it was not designed to authorize the company to cross the river, as a part of the route of their road, those restrictions would have been nugatory. I take it to be very clear, that where a river intervenes between the termini of a railroad, the main grant includes the right to cross the river, either by a bridge or by boats. That is a necessary incident. It is important that the company should have the right of passage, even when there are ferries; as the proprietors of the ferries might not feel inclined so to arrange their crossing as to accommodate the passengers on the railroad. The cars might arrive and depart at a late hour of the night, and the passengers might be subject to great delays and exposure if they were dependent upon a ferry proprietor. The consent of the corporation of Albany was probably deemed necessary, or at all events proper, to enable the company to construct in that city single or double tracks, with suitable turnouts and branches, in order to enable the company to reach the river from their new depot. There is nothing requiring the consent of the corporation to enable the company to cross the river. The implied grant as to that is unconditional, except as to the prohibitions against constructing a bridge and obstructing the navigation. The corporation of Albany, on the 23d of April, 1840, gave its consent to the construction of the depots, and the single or double tracks within the city, conformably to the act. In the agreement giving the consent, the corporation stipulated that no charge should be made (by the city corporation) to the railroad company, for the right and privilege, at their own costs and expenses, to carry across the Hudson river, at Albany, the passengers and freight transported, or to be transported, upon the railroad, or the officers and servants of the company, or their engines, cars or other property. That provision was no doubt inserted in the agreement to prevent any claim by the city corporation for compensation, under its power to regulate ferries. It contained no restriction of the right of the company to use the river as a part of its route. No *Page 386 condition or qualification was annexed to the consent, if indeed any such had been sanctioned by the statute authorizing the extension of the route; which is at least very doubtful. There is indeed nothing in the agreement to limit such right. The company would have the same right to carry passengers and baggage across the river, as on any part of their route on the land. If they should choose to transport passengers, or baggage, or freight gratuitously on any part of their road, they would not have rendered themselves responsible in damages to a public turnpike in its immediate vicinity, because the profits of the turnpike company would thereby be diminished. If the managers of the railroad company should so act without reference to its interest, and with a disposition to injure the turnpike company, another question might arise; but such disposition has not been found or indeed intimated in this case. Passengers who have not previously passed, or do not intend to pass over other parts of the road, cannot be distinguished from the mere passers over the river without more difficulty, trouble and expense than the company is willing to encounter; and that probably causes the difficulty which has given rise to this controversy. Of course the company can gain nothing but additional trouble, by carrying other persons than their passengers, or other things than their freight, gratuitously; and probably if the lessees of the ferry would be at the necessary expense, they would be willing to exclude all but their own passengers and freight, from crossing the river free of expense.
I have thus far considered the case upon the supposition that the defendants claimed a ferry eo nomine. That, however, is not precisely this case. They claim the right to carry passengers and freight across the river, solely as a part of their railroad route. In fact, what they claim and do is without one of the descriptive characteristics of a ferry. They make no charge and receive no compensation for carrying either passengers or baggage across the river. A ferry is defined to be a liberty by prescription or the king's grant to have a boat for passage upon a river, for carriages, horses or men for reasonable toll (Jacob's Law Dic., Title "Ferry"; Burrill's Law Dic., *Page 387 same title). All the definitions of the word, by law writers, are to the same effect. The practice, of which alone the plaintiffs complain, is not that of ferry proprietors. This presents a case where the grant of a public privilege by the Legislature for one purpose, incidentally diminishes the profits of a franchise (for there is a franchise in such ferries as existed at the time of the passage of the act extending the defendants' railroad), established for another purpose. It is well settled that the injuries to the proprietors of such preëxisting franchise, resulting from subsequent legislative grants, are damnum absque injuria.
The grant of ferry privileges to the plaintiffs, in a lease made by the common council of Albany subsequent to the acquisition of the defendants' right, could not of course affect or impair such rights. The judgment should be affirmed.
COMSTOCK, J., was also for affirmance.
Judgment reversed, and judgment for plaintiffs.