ing itself from a place or marsh called the Isle of Dogs, or Stebonheath Marsh, within the said manor, over the said river Thames into the town of Greenwich, in the county of Kent, and free liberty of carrying, ferrying, and transporting men, horses, beasts, and all other cattle and carriages whatsoever, to and from the said marsh into and from the said town of Greenwich, with wherries, flat-bottom ferryboats, or otherwise howsoever, together with all profits and advantages of ferryage, wharfage, and passage, and all other commodities, emoluments, and appurtenances to the said ferry belonging or in any wise appertaining, or reputed or taken as part, parcel, or member thereof, in as full, large, and ample a manner as the same hath been at any time heretofore demised, granted, letten, used, occupied, or enjoyed, To hold the same unto and to the use of the said John Reeley and Thomas Jones, their heirs and assigns for ever.

By several subsequent conveyances to the same effect the fee simple and inheritance of the said ferry from the said Isle of Dogs over the said river Thames into the said town of Greenwich, has come to and is now vested in the trustees for the time being of a friendly society of free watermen, called the Isle of Dogs Ferry Society, and the plaintiffs at the commencement of this action were the lessees of the said ferry, and held the same as such lessees by virtue of an indenture dated the 11th of June, 1858.

The owners of the said ferry have an ancient embarking place or stairs at the Isle of Dogs, called the Potter's Ferry Stairs; and the

said stairs before and at the time of the grievances complained

*35] of in the declaration were the sole stairs for the embarking of persons using the said ferry from the Isle of Dogs to Greenwich.

The right of ferry is limited to the conveying of passengers from the Isle of Dogs to Greenwich. There is no corresponding right of ferry from Greenwich to the Isle of Dogs.

The Isle of Dogs is situate on the banks of the Thames, and the south side thereof is opposite to Greenwich. The island is, except on its northern side, surrounded by the river Thames, and is about one square mile in extent. Up to a recent period, the whole of the island was marsh, intersected by dykes, and used only for the feeding of cattle. In many parts it was covered with reeds, and in some seasons was in parts under water. It was uninhabited, except by the persons working the ferry and by a man whose duty it was to take the cattle. off the marshes. Till the year 1812, there was only one road or way in the island, namely, a road or way leading from Potter's Ferry Stairs, in a northerly direction, through the centre of the island, to the vil lage of Poplar, where it ran into a street called the High Street. The distance from Poplar to the stairs by this road was about one mile and three-quarters. The way was a public way, and was known by the name of the Manor Way. The part of the island which abutted on the Thames was surrounded by a bank or wall of earth to protect it from inundations. The said bank or wall of earth was tortuous in its course, following the indentations of the river, and was a portion of the general embankment or river-wall running along that side of the river, traces of which, extending beyond the Isle of Dogs, and as far as Southend, which lies at the mouth of the river Thames, exist to this day.

[*36

*The said wall was watched by people whose duty it was to see that it was in a fit state to keep out the high tides; and earth was added to the top from time to time as occasion required, for that purpose. In fine weather, the top of the wall was used as a road by persons preferring to go round by the water. It had become a worn road, though not kept in repair.

When the West India Docks were made, in or about the year 1800, they were made in the Isle of Dogs, and right across the way or road which led to and from Poplar and the Potter's Ferry Stairs; in consequence of which it became necessary that the road should be diverted, which was done, and the road was carried to the distance of half a mile in an easterly direction over the bridges built at the entrances of the West India Docks, and so into Poplar.

Adjoining Poplar, on the east side, is Blackwall, all the neighbourhood of which is comparatively modern. Here a pier has been erected, called the Brunswick Pier, and from this about sixteen years ago steamboats began to run to and from a point in Greenwich close to the ferry landing-place; and such steamboats have continued to run there ever since. From High Street, Poplar, to the Brunswick Pier at Blackwall, the distance is half a mile. From High Street, Poplar, to Cubitt's Pier (hereafter mentioned), the distance is one mile and a half. From the bridge at the entrance of the docks to Potter's Ferry Stairs, the distance is one mile and 920 feet, by the diverted road. Steamboats run every quarter of an hour from Brunswick Pier to Greenwich Pier.

In the year 1812, an Act of Parliament was obtained, under the provisions of which the before-mentioned Manor Road was improved and altered into a carriage-road, after which it was called the Ferry Road.

Within the last thirty years the Isle of Dogs has been much [*37 built upon, both on the east and west sides of the said road: but, until the year 1846, when the defendant Cubitt began to build as hereinafter mentioned, there was no building on the island on the east side of the said road, except a public-house called the Folly House, which was situated on the banks of the river, and was distant rather more than a mile from the ferry stairs.

Within the last few years, factories and workshops and houses have been built on the island; and it now contains many inhabitants.

In the year 1842, the defendant Cubitt became possessed of a large tract of land on the east side of the said island, and east of the said Ferry Road, and abutting on the River Thames. He made an embankment along the whole of the river frontage of this land, filling up the indentations of the old river-wall, which was thereby rendered unnecessary, and was in fact obliterated. He drained the whole of the land, and began to build on it where it was previously a marsh and uninhabited, and has built there many houses, factories, and a church; and the buildings are still regularly progressing. This part of the island at the time of the alleged grievances contained about 3000 inhabitants, and was called or known as Cubitt Town.

The defendant Cubitt also constructed a dock and wharf and landing-place called Cubitt's Corner. He also made roads over the part of the island built upon by him, and, in the year 1857, erected a pier

extending 138 feet into the river, for the use of the inhabitants of Cubitt Town. This pier is distant three-fourths of a mile along the shore of the river from the Potter's Ferry Stairs, and about one mile and a quarter from Garden Stairs, Greenwich. The distance by the road between the pier and the Potter's Ferry Stairs is 1282 yards. The pier and steamboat are an accommodation *to persons de*38] sirous of proceeding from Cubitt Town to Greenwich, as it is more convenient to cross direct by the steamboat than it is to proceed across the island, and then across the river by the ferry-boat.

This being the altered state of things on the eastern shore of the island, the defendant Cubitt, in the month of June, 1858, hired a steamboat, and caused it to ply from the said pier to the Greenwich pier, which adjoins Garden Stairs. It was found by the jury at the trial, and must be taken as a fact, that he did this with the bonâ fide object and intention of affording necessary accommodation to the inhabitants of Cubitt Town, and not with any object or intention of diverting passengers from the said ferry, or in any way injuring the rights of its owners, though it might to a small extent have that effect.

The defendant Vorley was the master of the said steamboat, which plied between Cubitt's Pier and Greenwich from the time it was so laid on to the commencement of the action. It was to try the right of the defendants to convey passengers by this steamboat that the present action was brought.

The Ferry Company have at all times claimed the exclusive right to convey passengers from all parts of the Isle of Dogs to the opposite shore. But it appeared, that, on the western side, there are two landing-places, called The King's Arms Stairs and the Cocoa Nut Stairs, the former distant about a mile, the latter about half a mile from the Potter's Ferry Stairs; and from these stairs on the western side watermen not members of the Ferry Company, nor using boats belonging to the Company, have in very numerous instances embarked and conveyed passengers for Greenwich without obstruction or interference on the part of the Company. There was, however, no positive evi

dence that this was known to the Ferry Company, further *than *39] the same might be inferred from the frequency of the practice.

The right of the Company as regards the southern side of the island is not now in dispute. It was established in the actions of Giles v. Groves, 12 Q. B. 721 (E. C. L. R. vol. 64), Blacketer v. Gillett, 9 C. B. 26 (E. C. L. R. vol. 67), and Doust v. Matthews, hereinafter referred to. The present contest has reference to the eastern side of the island, as to which the owners or lessees of the ferry claim the sole and exclusive right of ferrying all persons passing from any point of the shore to the opposite shore from Deptford Creek to Charlton,—a distance of three miles.

It appeared in evidence on the trial, that, on many occasions, the lessees of the ferry, on seeing watermen or others not authorized by the ferry society conveying passengers from this part of the Isle of Dogs to Greenwich, have interfered, and either prevented such unauthorized persons carrying such passengers, or have caused them to pay over the passage-money received by them from such passengers. It is contrary to a by-law of the Waterman's Company, made

under the powers conferred upon them by the 7 & 8 G. 4, c. lxxv., for a waterman to take passengers from an unlicensed place; and he is liable to a penalty for so doing. On the other hand, it appeared that watermen not authorized by the society were often in the habit of conveying passengers from the Isle of Dogs, especially from the Folly House, a public-house on the shore, to Greenwich; but it does not appear that this was done with the knowledge of the society or their lessees.

The right of the society was enforced by proceedings at law in the following instances:-In the year 1817, the existence of the ferry was brought in question in an action of Giles v. Groves, in the Queen's Bench (12 Q. B. 721 (E. C. L. R. vol. 64)), in which action it was found by the jury, and adjudged by the Court, that a ferry-right from the *Isle of Dogs to Greenwich did exist, and that the fee simple [*40 thereof was vested in the trustees of the said Isle of Dogs Ferry Society. Afterwards, in the year 1849, one Gillett, denying the right of ferry in the Company to ferry passengers from the Isle of Dogs to Greenwich otherwise than from Potter's Ferry Stairs, plied for passengers from a certain place in the Isle of Dogs called Johnson's Corner, situate on the south side of the island, and about two hundred yards below the said Potter's Ferry, and conveyed passengers from the said Johnson's Corner to Greenwich; whereupon the Isle of Dogs Ferry Society, by one Blacketer, their then lessee, brought an action against Gillett, which was tried in the Court of Common Pleas at Westminster in the year 1849, when it was found by the jury, and adjudged by the Court, that the said Gillett had disturbed the lessee of the said ferry society in the enjoyment of the said ferry: see Blacketer v. Gillett, 9 C. B. 26 (E. C. L. R. vol. 67).

The defendant Cubitt having constructed the dock and wharf as before stated, and also the landing-place called Cubitt's Corner, situate 630 yards below the Potter's Ferry landing-place, caused a finger-post to be erected on the Isle of Dogs, pointing towards the place called Cubitt's Corner, on which was painted "This way to Greenwich ;" and one Matthews commenced plying with a boat for the conveyance from Cubitt's Corner to Greenwich of passengers in general. Whereupon the Isle of Dogs Ferry Society, by one Doust, their then lessee, brought an action against the said Matthews for disturbance of the said ferry belonging to the said society, which action was tried in the Court of Common Pleas in the year 1856, when by the said Court it was also adjudged that the said Matthews had infringed the right of ferry belonging to the said society.

Upon the trial of the present action, it appeared, *that, in the [*41 year before the defendants' steamboat commenced running, the owners of the Isle of Dogs Ferry let the same for the sum of 4701. per annum; whereas, since the boat commenced running, the ferry has produced less than half that amount. It was also proved that the defendants had conveyed not only the occupiers of the new houses at Cubitt Town, but also other persons coming from other places, and who would otherwise have crossed from the plaintiffs' ferry-stairs to Greenwich, and who therefore had been diverted by the said pier and steamboat but it also appeared, that, with one or two exceptions, the persons were not persons coming from Poplar, but persons living at

East and West Greenwich and Woolwich, and working at the East and West India Docks, and who used the steamboat in going to and from their work.

The only person who used the steamboat in coming from Poplar to Greenwich was a man resident at Greenwich, who worked at Poplar, and who sometimes went by the steamboat from Cubitt's Pier and sometimes by the ferry-boat from Potter's Ferry landing-place, but who when pressed for time went by the ferry-boat. Another witness for the plaintiffs proved, that, when working in the East India Docks, which are in Blackwall, he used to go to and from Greenwich, where he resided, by the steamboat from Cubitt's Pier; but, when working at Mill Wall, which is in Poplar, he used to go to and from Greenwich by Potter's Ferry.

Upon this state of facts, it was contended for the defendants,-first, that the right of ferry of the plaintiffs did not extend to the eastern side of the island,-secondly, that the steamboat having run bonâ fide for the accommodation of the inhabitants of Cubitt Town, the conveyance thereby of passengers from the pier there was not a disturbance of the right of ferry of the plaintiffs.

*42] *On the other hand, it was contended for the plaintiffs, that they were entitled to the right of ferry in respect of all persons passing from the said Isle of Dogs to Greenwich, as well as of those persons who had been accustomed to pass over the plaintiffs' ferry before the new houses and buildings were erected; and that the running of the said boat, and the conveyance of the passengers therein by the defendants as aforesaid, was a disturbance of the plaintiffs' right of ferry, for which the plaintiffs were entitled to maintain the action.

The Lord Chief Justice left it to the jury to say,-first, whether it had been the intention of the defendants, by establishing the said steamboat and conveying the said steam-passengers, merely to accommodate the occupiers of the said new houses and buildings, or also to interfere with the traffic by the ferry of the plaintiffs,--and, secondly, whether, besides conveying the occupiers of such new buildings and houses, it had had that effect.

The jury found that it was not the intention of the defendants, in running the said steamboat, to divert the traffic from the plaintiffs' ferry by establishing the steamboat and conveying passengers as aforesaid, but merely to accommodate the occupiers of the said new houses and buildings; but that, besides the conveyance of the occupiers of the said new houses and buildings, it had to a small extent had that effect. A verdict was thereupon entered for the plaintiffs, subject to the opinion of the Court.

The questions for the opinion of the Court were,—first, whether, upon the facts stated, the conveyance of passengers from Cubitt Town amounted to a disturbance of the plaintiffs' right of ferry,-secondly, whether the conveyance of other passengers than those coming from Cubitt Town amounted to a disturbance of the plaintiffs' right.

*If either of these questions should be answered in the affirm#43] ative, the verdict was to stand, with such damages as should be found to have been sustained by the plaintiffs on the certificate of an arbitrator to be agreed upon by the counsel on both sides. If not the verdict was to be set aside, and a verdict entered for the defendants.