East Hartford v. Hartford Bridge Company
51 U.S. 511 (1850)

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U.S. Supreme Court

East Hartford v. Hartford Bridge Company, 51 U.S. 10 How. 511 511 (1850)

East Hartford v. Hartford Bridge Company

51 U.S. (10 How.) 511

Syllabus

From the year 1681 to 1783, a franchise in the ferry over the Connecticut River, belonged to the Town of Hartford, situated on the west bank of the river.

In 1783, the legislature incorporated the Town of East Hartford, and granted to it one-half of the ferry during the pleasure of the general assembly.

In 1808, a company was incorporated to build a bridge across the river, which, being erected, was injured and rebuilt in 1818, when the legislature resolved that the ferry should be discontinued.

This act, discontinuing the ferry, is not inconsistent with that part of the Constitution of the United States which forbids the states from passing any law impairing the obligation of contracts.

There was no contract between the state and the Town of East Hartford by which the latter could claim a permanent right to the ferry. The nature of the subject matter of the grant and the character of the parties to it both show that it is not such a contract as is beyond the interference of the legislature.

Besides, the Town of East Hartford only held the ferry right during the pleasure of the general assembly, and in 1818 the latter expressed its pleasure that the ferry should cease.

After the year 1818, the legislature passed several acts contradictory to each other, alternately restoring and discontinuing the ferry. Those which restored the ferry were declared to be unconstitutional by the state courts upon the ground that the act of 1818 had been passed to encourage the bridge company to rebuild their bridge, which had been washed away. But these decisions are not properly before this Court in this case for revision.

The Town of East Hartford, having no right to exercise the ferry privilege, may have been correctly restrained by injunction from doing so by the state court.

The defendant in error filed its petition in the superior court holden at Hartford for an injunction restraining the Town of East Hartford, plaintiff in error, its servants, agents &c., from the use of a certain ferry over the Connecticut River and from receiving tolls &c. Upon the hearing of the cause on petition, answer, and the report of a committee appointed to inquire into the facts, the injunction was granted, and upon being carried to the Supreme Court of Errors, the decree of the court below was affirmed. Whereupon the case was brought here by writ of error under the twenty-fifth section of the Judiciary Act.

The report of the committee was as follows, omitting the documents referred to therein, and which were appended to the report:

"To the Honorable Superior Court to be holden by adjournment at Hartford, in and for the County of Hartford, on the second Tuesday of June, A.D. 1843: "

"At an adjourned term of said court, holden at said Hartford on 1 May, 1843, upon a bill in equity then and there pending before said court, in which bill the Hartford

Page 51 U. S. 512

Bridge Company is complainant, and the Town of East Hartford and Samuel Brewer, of said Town of East Hartford, are respondents, the subscribers were appointed a committee to find and report to said court, at an adjourned session thereof, to be holden at Hartford aforesaid, on the second Tuesday of June, 1843, the facts in said bill, and the answer thereto. And having duly notified the parties of the time when and the place where we would meet and hear them in relation to the facts in said bill and answer contained, we, in conformity with said notice, met the parties on 6 June instant, at the city courtroom in the said Town of Hartford, and, having been first sworn according to law, fully heard them, from day to day, by their counsel and with their testimony and witnesses, and now find and report the facts following, viz.,"

"That in the month of December, 1681, the Town of Hartford passed a vote regulating the tolls to be taken at the ferry over Connecticut River between said Town of Hartford and what is now the Town of East Hartford, which appears by a copy of said vote hereunto attached and marked A. That on 31 March, 1682, said ferry was by said town of Hartford leased to Thomas Cadwell for the term of seven years, a copy of which lease is attached hereunto, marked B. That on 13 December, 1687, said lease was renewed to the same Thomas Cadwell for the further term of seven years; a copy of which renewal is attached hereunto, and marked C. That on 27 December, 1694, said Town of Hartford chose a committee to contract with some person to take the ferry upon the best terms in their power, of which vote a copy is attached hereunto, marked D. That on 15 January, 1695-1696, said committee engaged the said Thomas Cadwell to take the ferry aforesaid for seven years, of which lease a copy is hereunto attached, marked E. That at the session of the legislature in October, 1695, the tolls to be taken both at the Hartford and Windsor ferries were regulated by law, as will appear by an act in the edition of statutes 1695. That the tolls or fares to be taken at the Hartford ferry were regulated by legislative enactments, as appears in the edition of statutes 1808. That from the year 1681 until October, 1783, said ferry continued to be the franchise of said Town of Hartford, and during that period was used and enjoyed as such by the Town of Hartford alone, but that the legislature, at their session in October, 1783, incorporated the Town of East Hartford, granting to said Town of East Hartford one-half of said ferry during the pleasure of the general assembly, a copy of which act is hereunto attached, marked F."

"That said Town of Hartford, on 1 February, 1810, for the consideration

Page 51 U. S. 513

of an annual rent of forty-five dollars, leased its moiety of said ferry to Daniel Buck and Elisha Williams for the term of five years, and that the payment of the rent reserved in said lease was duly made by said lessees up to the year 1814, when, in consequence of the reduced travel across said ferry, said Town of Hartford exacted of said Buck and Williams no rent thereafter, but that certain individuals interested in the business and real estate on Ferry Street, in said Town of Hartford, and others, at their own expense, procured a ferry boat which was run across said ferry and from which they received no toll whatever and no compensation other than an allowance made by the ferryman for the use of the boat, the Town of Hartford making no opposition to this use of their right, which continued until the year 1818. That at the session of the general assembly in October, 1808, upon the petition of John Watson and others, an act or resolve was passed incorporating the said John Watson and others by the name of the Hartford Bridge Company and granting them liberty to erect a bridge across Connecticut River and to raise and build a causeway through the meadows of East Hartford, which act or resolve is made a part of this report and is contained in the volume of Private acts of the State of Connecticut at the 254th page."

"That the petitioners, in pursuance of said charter or act of incorporation, erected a bridge across said Connecticut River and built said causeway through the meadows of East Hartford, and in all things pursued the provisions contained in said act of incorporation except that said bridge was not so erected that the travel was on a horizontal line in the chord of the arch, nor were the piers as high as contemplated by the act of incorporation, but said bridge and causeway, after the same were completed, were accepted by John Cadwell, Jonathan Brace, and Andrew Kingsbury, Esquires, a standing committee by the general assembly appointed in said act of incorporation, for all the purposes mentioned in said act, whose certificate, marked G, is hereunto attached, and that no objection to the mode or manner of the erection of said bridge in not having the travel thereon on a horizontal line in the chord of the arch, nor to the height of said piers, has been made known until after the petition which the petitioners preferred to the October session of the general assembly in the year 1817, but that the general assembly has once and again acted upon the subject of the tolls of said bridge and other interests appertaining thereto, and granted the petitioners a new charter in the year 1818, without claiming that the charter of 1808 was forfeited by a noncompliance with any of the conditions thereof."

"That the petitioners, on 3 October, 1817, made application

Page 51 U. S. 514

to the general assembly for a discontinuance of said ferry between the Towns of Hartford and East Hartford, which petition is hereunto attached, marked H, upon which petition the general assembly passed a resolve or act, which resolve or act is copied and is hereunto attached, marked I."

"That under said resolve, the petitioners expended large sums in the repairs of said bridge and causeway under the inspection of the said John Cadwell, Jonathan Brace, and Anthony Kingsbury, Esquires, who, by said act or resolve were by said general assembly constituted a committee or commissioners to superintend the repairs on said bridge and causeway."

"That in erecting or repairing said bridge, the petitioners from time to time received directions from said committee or commissioners, which directions were followed and obeyed, and said causeway and bridge were repaired and ready for the accommodation of the public on 1 December, 1818, as appears by the certificate of said committee or commissioners hereunto attached, marked K, but in the erection of said bridge by the petitioners, that part of the woodwork or floor of said bridge which is opened or unfolded for the passage of vessels was constructed only 24 feet 7 inches wide, while the space underneath, between the abutment and pier of said bridge on the west side, through which the hull of vessels must pass, is more than 30 feet wide."

"That no delay has ever been occasioned to any vessel in passing through said bridge for want of space or room through which to pass; nor does it appear that any objection against the width of the passage through said bridge was ever raised by the public or by those who are in the habit of passing with their vessels through said bridge until after the year 1836. And this committee is of opinion and does find that notwithstanding the opening in the woodwork of said bridge, through which vessels are to pass, does not exceed 24 feet 7 inches in width, yet there is adequate room for the accommodation of all who have occasion to pass through said bridge with their vessels, and no inconvenience is suffered by the public in consequence of the narrowness of the passage through the woodwork of said bridge."

"And although the rights of the petitioners in relation to said bridge and their compliance with or violation of the terms and provisions of their several charters have been frequently, both incidentally and directly, the subjects of discussion and debate before the general assembly, and their decision upon said points been had, yet has no real or apparent noncompliance on the part of the petitioners with the terms or provisions of the charter of 1818, in neglecting to make the opening in the woodwork of said bridge for the passage of vessels wider than 24 feet 7 inches, ever been deemed or adjudged by

Page 51 U. S. 515

said general assembly a violation of said charter, or a forfeiture thereof, notwithstanding they have once and again been urged to come to such a conclusion."

"That on 21 April, 1837, S. W. Mills and others preferred their petition to the general assembly of said state, to be holden at Hartford on the first Wednesday of May of the same year, complaining, among other things, of the width of the draw of said bridge, a copy of which petition is hereunto attached, marked L, upon which petition, at the same session of the general assembly, a report of the joint standing committee on roads and bridges was made and accepted, a copy of which is hereunto attached, marked M. That when the Town of Manchester, by an act of the general assembly passed at their session in May, 1823, was incorporated into a town and set off from said Town of East Hartford, no notice was taken in said act of the interest of said Town of East Hartford in said ferry, which act incorporating said town of Manchester may be found on the 1155th page of the private acts or laws of the State of Connecticut, and is made a part of this report."

"That after the passage of the act of the year 1818 by the general assembly and the discontinuance of the ferry between the Towns of Hartford and East Hartford, the Town of Hartford, at an adjourned town meeting holden in said town on the first Monday of December, 1835, passed several votes, copies of which votes are hereunto attached, marked N, and that prior to the year 1818 and the passage of the act of the general assembly granting to the petitioners permission to erect a new bridge, the inhabitants of said Town of Hartford, at an adjourned town meeting by them holden on the 29th day of December, 1817, passed a vote, a copy of which, marked O, is hereunto attached. That at the session of the general assembly in May, 1836, an act was passed, repealing so much of the act of 1818 as abolished or discontinued the ferry between the Towns of Hartford and East Hartford, which act is made a part of this report and is on the 565th page of the private acts or laws of the State of Connecticut, which act or resolve was passed upon the petition of Caleb Stockbridge and others, to which petition the Towns of Hartford and East Hartford were made respondents."

"That said general assembly, at their session in May, 1842, passed a resolve, which is made a part of this report and is found on the 21st page of the resolutions of the general assembly passed May session, 1842. That on the 14th day of May, 1842, application was made by the agent and attorney of the petitioners to several of the selectmen of said Town of Hartford, for the purchase of the right of said Town of Hartford in and to said ferry. That several of

Page 51 U. S. 516

said selectmen to whom said application was made did not suppose that said Town of Hartford had an interest in more than a moiety of said ferry, although they had been from time to time conversant with all the facts in relation to said ferry and the various claims concerning the same made before the legislature when the rights of the petitioners and of said Town of East Hartford were discussed, and the petitioners claimed that neither the Town of Hartford nor East Hartford had any right to said ferry, but that said selectmen subscribed an instrument or indenture, a copy of which, marked R, is hereunto attached, subject, however, to the approval of the inhabitants of said Town of Hartford, to be expressed at a town meeting to be subsequently held, and that on 18 May, 1842, said Town of Hartford, at a special town meeting on that day held by virtue of warning which is hereunto attached, marked S, approved of said indenture or instrument thus executed previously by said selectmen of said Town of Hartford, and we find that the agent and attorney of the petitioners, when negotiating with said selectmen in relation to the purchase by the petitioners of the right of said Town of Hartford in and to said ferry, distinctly stated to said selectmen that the object of the petitioners, in purchasing the right of the said Town of Hartford in and to said ferry, was to enable the petitioners to commence some process before a court of law or equity by which the questions at issue between the petitioners and the Town of East Hartford might be finally decided."

"That the whole negotiation between the agent and attorney of the petitioners and said selectmen and Town of Hartford was fairly and honestly conducted. That the petitioners paid to said Town of Hartford the first annual payment due on said instrument in the month of September, 1842. That from time immemorial until the year 1818, no boats other than flat-bottomed scow boats moved by oars had been used on said ferry, but that from the year 1836 until this time, said Town of East Hartford, when using said ferry, has run a horse boat at said ferry."

"That with the exception of the time when the bridge of the petitioners has been impassable and said Town of Hartford has by law been compelled to keep up said ferry, the said Town of Hartford has not made any use of said ferry as a franchise or derived any benefit or emolument therefrom since the year 1814."

"That from the time when the bridge of the petitioners was completed in the year 1818 until after the passage of the resolve of the general assembly in May, 1836, said ferry between the Towns of Hartford and East Hartford was not used as a public ferry, and no boats during said time were kept thereat by said Towns of

Page 51 U. S. 517

Hartford and East Hartford, or either of them, to transport and convey passengers, freight &c."

"That from the time when said ferry between the Towns of Hartford and East Hartford was restored by the general assembly in 1836 until it was discontinued, in 1841, the Town of East Hartford has received for ferriages and tolls collected at said ferry, which during said time has been carried on solely by said Town of East Hartford, a large sum of money, viz., more than ten thousand dollars."

"That after the year 1814, the ferry between said Towns of Hartford and East Hartford was not kept up by both or either of said towns, but that individuals, upon their own responsibility and at their own cost and charges, managed said ferry and collected toll thereon until the bridge first erected by the petitioners was partially or wholly destroyed in the year 1818, when by law said Towns of Hartford and East Hartford were compelled to keep boats at said ferry for the accommodation of the public travel, which the said Town of Hartford relinquished and abandoned as soon as the petitioners rebuilt or repaired their said bridge, the erection of which relieved the said Towns of Hartford and East Hartford from the necessity and expense of maintaining boats suitable for crossing the meadows in time of flood."

"That since the completion of the first bridge of the petitioners, in 1811, the petitioners have ever been accustomed to take toll according to law of all who have made use of their said bridge, nor has any person disputed or resisted their right upon the pretense that either the first or the second bridge was not constructed according to the provisions of their several charters or grants."

"That the petitioners, since the purchase by them of the right of the Town of Hartford in and to said ferry, have not run any boat across said ferry, nor made any provision for the accommodation of the public travel at said ferry, nor commenced, until the date of this petition, any suit at law or bill in equity against the respondents, or either of them."

"The committee further finds that the petitioners have invested in said bridge and causeway a large sum of money; that the bridge and causeway erected by them under the grant or charter of 1808, and which was accepted and approved by the commissioners or standing committee appointed by the general assembly, cost more than ninety-six thousand dollars, that to reconstruct said bridge under the grant or charter of 1818, and to rebuild said causeway and make therein and in said bridge such alterations and improvements as were directed by the act of the legislature, the petitioners expended about thirty thousand dollars, and that for various other repairs and expenditures on said bridge and causeway the petitioners have disbursed a further

Page 51 U. S. 518

sum of forty-seven thousand dollars and upwards, so that the standing committee or commissioners on said bridge, when settling the accounts of said Hartford Bridge Company on 12 April, 1842, found and reported to the general assembly that on said 12 April, 1842, there was due to the petitioners, for arrears of interest on the capital by them invested, at the rate of twelve percent annum, the sum of $227,270.89."

"That the annual receipts for toll, so far as the same can be ascertained from the treasury office, are contained in a schedule hereunto attached, marked T. The committee finds that Samuel Brewer, one of the respondents, at the time of commencing this petition, was one of the selectmen of said Town of East Hartford, and, as agent of said Town of East Hartford, had charge of said ferry and of the ferry boat. And we further find that although some of the inhabitants of East Hartford, Glastenbury, and other towns are personally accommodated by a continuance of the ferry, especially when their business in the Town of Hartford calls them into State Street or parts of the Town of Hartford lying south of State Street, inasmuch as the distance which they are under the necessity of traveling is considerably diminished and the toll or fare which they are compelled to pay is less at the ferry than at the bridge, still it is only when the river is low in the summer season and the weather not windy and boisterous that the ferry is preferable to the bridge, even to these individuals."

"But the committee is of opinion and finds that said ferry is not of public convenience and necessity, nor do the interests of the community require its continuance. The committee further finds that the bridge of the Hartford Bridge Company over Connecticut River is not only highly advantageous to the prosperity and increasing growth of both the Towns of Hartford and East Hartford, but is of great public convenience to all who have occasion to cross Connecticut River at this place."

"That the value of real estate, both in the Towns of Hartford and East Hartford, has been greatly enhanced since the erection of said bridge, and in consequence of the facilities of intercourse with the City of Hartford and places contiguous thereby furnished, and that said bridge is of great public convenience and necessity, and is abundantly adequate to accommodate all who may wish to come to or depart from Hartford across Connecticut River between the Towns of Hartford and East Hartford; neither can the inhabitants of Hartford or East Hartford nor the community at large dispense with said bridge. The committee is of opinion that the real estate in the Towns of Hartford and East Hartford, since the erection of said bridge and by reason of the facilities thereby furnished to travelers and

Page 51 U. S. 519

others, has been increased in value to an amount greater than all that has been expended by the petitioners in the erection and support of said bridge and causeway since the year 1808, and that, were said ferry of public convenience and necessity, it would not be made at all seasons of the year, both by night and by day, so safe and so commodious as the bridge of the petitioners now is and has ever been."

"That at the time of the passage of the act of 1818, the tolls which the petitioners were before that time authorized to receive were much reduced. That the legislature has from time to time taken into consideration said bridge and ferry, and the interests and rights of the public in relation thereto will appear by several resolves and acts of said legislature, all of which are part of this report, two of which acts are found on the 260th and two on the 261st page of the private laws of the State of Connecticut, and one on the 55th page of the resolves passed by the general assembly in the year 1839, and two of said resolves are to be found on the 564th and 565th pages of the private acts of the State of Connecticut."

"That the resolve or act passed by the general assembly at their session in May, 1842, restoring to the Towns of Hartford and East Hartford the ferry between said towns, was founded upon a report of the joint select committee of the legislature, a copy of which report, marked X, is hereunto attached, to the admission of which report as evidence on the part of the respondents the petitioners objected, and the same was admitted, subject to such objection. That at a session of the general assembly in May, 1841, a resolve was passed discontinuing or suppressing said ferry, which act or resolve is hereunto attached, marked Y, which act or resolve was passed upon the report of a committee of said assembly, a copy of which report is hereunto attached, marked Z, to the admission of which report on the part of the petitioners an objection was made by the respondents, and the same was admitted, subject to said objection."

"That at the time when said instrument or indenture between the Town of Hartford and the petitioners was executed, a petition in favor of the Town of East Hartford was pending before the legislature, to which petition the said Town of Hartford and the petitioners in this bill were respondents."

"All which is respectfully submitted by"

"EB. LEARNED"

"JOHN STEWART"

"Committee"

"Hartford, June 10, 1843"

The following summary of the legislation of Connecticut on the subject matter of this controversy will be sufficient to indicate the constitutional question growing out of it.

Page 51 U. S. 520

The act of 1783 divided the ancient Town of Hartford which lay on both sides of the river into the Towns of Hartford and East Hartford, and at the same time the property of the ancient town was also divided; "and the privilege of keeping one-half of the ferry," &c., was declared to "belong to East Hartford during the pleasure of this assembly."

The act of 1806 established the boundaries of the two ferries between the Towns of Hartford and East Hartford, and provided

"that the occupiers of such ferry, south of said boundaries, shall have the exclusive privilege of taking passengers south of said boundaries, and the occupiers of said ferry north of such boundary shall have the exclusive privilege of taking passengers north of said boundaries."

The act of 1808, which incorporated the Hartford Bridge Company, contained the following proviso, viz.:

"Provided that nothing in this grant shall now or at any future time in any way lessen, impair, injure, or obstruct the right to keep up and maintain the ferries established by law between the Towns of Hartford and East Hartford,"

&c.

The act of 1818 provided that whenever the bridge company should have repaired their bridge &c.,

"the ferries by law established between the Towns Hartford and East Hartford shall be discontinued, and said towns shall thereafter never be permitted to transport passengers across said river unless on the happening of the contingency hereinafter mentioned."

The contingency was the nonrepair of the bridge, in which case the Towns of Hartford and East Hartford were to resume their rights "to occupy and improve said ferries."

The act of 1836 repealed the act of 1818 so far as it interdicted the ferry.

The act of 1841 repealed that of 1836, and the act of 1842 repealed that of 1841, and in the second section provided, that the right of the Town of East Hartford to keep and use the ferry, "as possessed by said Town of East Hartford prior to said act of 1841, is hereby restored and confirmed," &c.

Page 51 U. S. 532

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