stitute an infringement of the plaintiffs' right of ferry, the carrying complained of must be substantially from and to the same vill. [WILLES, J.-What do you mean by substantially ?] It is the language of the authorities. The declaration here contains two counts. The first count is for carrying in the line of the plaintiffs' ferry: if the defendants have done that, they have infringed the plaintiffs' right, whether it was done intentionally or not. The second count alleges that the defendants "wrongfully, unlawfully, and for the purpose of evading the ancient ferry of the plaintiffs, and against the will of the plaintiffs, carried and conveyed in a certain boat of the defendants divers foot-passengers for hire over and across the said river Thames, near to the said part of the said river where the plaintiffs had such ferry as aforesaid, and near to the said ferry of the plaintiffs." If the right of the plaintiffs extends all over the Isle of Dogs, the intention is not material; the defendants have infringed that right, if they have *53] carried from any part of it. *If, on the other hand, their right is limited as suggested by Lord Campbell in the case last cited, the defendants have been guilty of no infringement unless they have carried from a point so near to the plaintiffs' ferry as substantially to be an evasion of it. In Tripp v. Frank, 4 T. R. 666, it was held, that, if there be an exclusive ferry from A. to B., it does not prevent persons from going by any other boat from A. directly to C., though it be near to B., provided it be not done fraudulently and as a pretence for avoiding the regular ferry.. It was there argued, that, "if the conduct of the defendant could be justified in this instance, it would render a right of ferry perfectly nugatory. Every person, then, by going a little to the right or left of the usual track of the ferry, may equally avoid the ferry." But Lord Kenyon said: "If certain persons wishing to go to Barton had applied to the defendant, and he had carried them at a little distance above or below the ferry, it would have been a fraud on the plaintiff's right, and would be the ground of an action. But here these persons were substantially, and not colourably merely, carried over to a different place; and it is absurd to say that no persons shall be permitted to go to any other place on the Humber than that to which the plaintiff chooses to carry them." Pim v. Curell, 6 M. & W. 234,† is entirely distinguishable from this case: there, the ferry alleged was, from one township to another township. The ferry here could not in point of law, and does not in point of fact, exist from every part of the Isle of Dogs to Greenwich. A ferry is always from a vill or township (which are synonymous) to another vill or township; no reference is ever made to a parish or district.(a) *"A ferry," says Parke, B., in delivering the judg *54] ment of the Court in The North and South Shields Ferry Company v. Barker, 2 Exch. 136, 149,† "is a highway for all the Queen's subjects paying the toll." [KEATING, J.-The terms of the indenture of 1676 are, "all that the ferry and ferry-place commonly called or known by the name of Potter's Ferry, with the ferryage, waytage, and passage for men, horses, beasts, and all other cattle and carriages whatsoever over the river Thames, lying, being, and extending itself from a place or marsh called the Isle of Dogs, over the said river Thames into

(a) For the definition of a "vill," see Co. Litt. 115 b, Jacob's Law Dictionary, Vill or Village, and Tomlyns's Law Dictionary, Vill.

the town of Greenwich, in the county of Kent."] Grants of this sort are to be construed strictly. Taking one Poplar passenger would not be an evasion of the plaintiffs' franchise, especially as it is not alleged that the defendants' servants knew the party was going to Poplar. In Huzzey v. Field, the passenger was known to be going to Pembroke; and the whole stress of the judgment is based upon that. The Court there expressly decline to come to the conclusion to which the Court is asked to come here. Lord Abinger says,-2 C. M. & R. 442,†—“It does not follow that, if there be a river passing by several towns or places, the existence of a franchise of a ferry over it from a certain point on one side to a point on the other precludes the King's subjects from the use of the river as a public highway from or to all the towns or places on its banks, and obliges them upon all occasions, to their own inconvenience, to pass from one terminus of the ferry to the other. The case of Tripp v. Frank, 4 T. R. 666, decided otherwise and it is not intended to question that decision." In no case has so extensive a claim been set up as a claim to carry all the inhabitants of a district: the claim has always been limited to the carrying from vill to vill, or across a river or arm of the sea so as to form a *junction with a continuous line of road from a township [*55 or vill on the one side to a township or vill on the other. The carrying of the single Poplar passenger could hardly warrant a jury in finding an intentional evasion of the plaintiffs' ferry. In the course of the argument in Pim v. Curell, 6 M. & W. 251,† Parke, B., says: "There was certainly evidence to go to the jury of the defendants' carrying substantially from the same towns or vills. There is some difficulty in reconciling some of the cases with Tripp v. Frank: but this is not the case of carrying one passenger, but of building an hotel, and establishing steamboats, by which they must have carried a multitude." That is the true test of infringement. If the carrying is substantially from a different spot, notwithstanding some of the persons carried would have gone by the plaintiffs' ferry, there is no infringement of the right.

Pigott, Serjt., in reply.-Intention is wholly immaterial in a question of this sort. The Court of Exchequer, in Huzzey v. Field, 2 C. M. & R. 442,† expressly say, that, "if any one should construct a new landing-place at a short distance from one terminus of the ferry, and make a practice of carrying passengers over from the other terminus, and there landing them at that place, from which they pass to the same public highway upon which the ferry is established, before it reaches any town or vill, and by which the passengers go immediately to the first and all the vills and towns to which that highway leads, there could not be any doubt that such an act would be an infringement of the right of ferry, whether the person so acting intended to defraud the grantee of the ferry or not." No authority has been cited to show that this is not a perfectly legal grant of a ferry from the Isle of Dogs to Greenwich. It has never been suggested throughout all the *numerous contests to which these parties have been exposed, that their claim was too large. The claim was infinitely larger [*56 in Pim v. Curell, 6 M. & W. 234.+ In Liverpool there are scores of streets running down to the Mersey, and a very numerous population. If the question were one of convenience, the confining the right of

ferryage to one place in Liverpool bears no comparison to the very moderate right claimed by these plaintiffs. There is no pretence for limiting the franchise to the conveyance of Poplar people: the Isle of Dogs Ferry has nothing whatever to do with Poplar. [ERLE, C. J.-Your claim is, to make people come to Potter's Ferry Stairs who do not want to come there, and who have no convenient mode of access to that place.] That is merely because at the time of the grant there was no other way of getting across. The simple question is, whether the plaintiffs' rights,-rights which they have been in the enjoyment of for more than two hundred years without interruption,-are to be annihilated and destroyed merely because Mr. Cubitt has thought fit to build a new town upon this marsh. Cur. adv. vult.

WILLES, J., delivered the judgment of the Court:

In the first count of the declaration the plaintiffs complain that the defendants had carried passengers in the line of their ferry; in the second, that they had so done near that of the said ferry, for the purpose of evading it.

The defendants carried to Greenwich passengers from Cubitt's Pier, which is on the eastern side of the Isle of Dogs, distant 1280 yards from Potter's Ferry Stairs, on the south side of that isle. The area of the isle is about one square mile. It is bounded by the Thames

on three sides out of four. It was an *uninhabited marsh down

*57] to 1800, with one roadway from Poplar on the north, to Potter's Ferry Stairs on the south; and at that time the passengers going along that road comprised all the passengers from the Isle of Dogs. Since 1800, it has become and now is populous, and covered with manufacturing and commercial establishments. Cubitt's Pier was made for the accommodation of Cubitt Town, built on the bank of the Thames at some distance from the roadway before mentioned, and only connected therewith by ways which the owner of the land has chosen to dedicate to the public.

Upon these facts, the questions are,-first, did the defendants carry within the line of the plaintiffs' ferry? and, if not,-secondly, did they carry near to it, for the purpose of evading it?

In order to answer the first question, the extent of the plaintiffs' ferry must be ascertained. The plaintiffs claim the exclusive right of carrying all who pass from any part of the isle to Greenwich. In support of their claim they rely on a deed of 1676, and on usage. A part of the description of the ferry in the deed of 1676, taken by itself, tends to support this claim, "All that ferry extending itself from a place or marsh called the Isle of Dogs, over the Thames, into the town of Greenwich." But, although these words may mean that every person passing from the Isle of Dogs to Greenwich must go by this ferry, there are other parts of the description which refer to usage; so that the extent must be ascertained thereby. It is a ferry commonly called and known as "Potter's Ferry." Usage must prove the application of this description. The concluding words also, viz., “in as ample a manner as the same hath heretofore been used, occupied, or enjoyed," make the limits depend on usage. Furthermore, the nature of the franchise seems to be *repugnant to the plaintiffs' claim of a ferry from every part of the isle indiscriminately. A ferry exists in respect of persons using a right of way, where the

*58]

line of way is across water. There must be a line of way on land, coming to a landing place on the water's edge (as in this case, to Potter's Ferry Stairs), or, where the ferry is from or to a vill, from or to one or more landing-places in the vill. The franchise is established to secure convenient passage; and the exclusive right is given because in an unpopulous place there might not be profit sufficient to maintain the boat, if there was no monopoly. The ferry is unconnected with the occupation of land, and exists only in respect of persons using the right of way. The questions, whence they come, and whither they go, are irrelevant to the exercise of that right: and the ferryman has no inchoate right in respect of any of them, unless they come to his passage.

Such being the nature of a ferry, the notion that a large area of land should be subjected to the servitude that the owners and occupiers thereof should be prohibited from using the highway of the Thames as they may choose, and should be under an obligation to get to the highway leading from Potter's Ferry Stairs, and cross to Greenwich only therefrom, is anomalous: and, if Cubitt Town had been built without a way therefrom to the road to Potter's Ferry, the performance of the supposed obligation would necessitate a trespass.

The cases on the nature of a ferry are few: and we cite only Paine v. Partrich, Carth. 191. There, the Court decided that case did not lie for an obstruction of a highway, without special damage; that a passage over the water is of the same nature as a highway for all people; and that the plaintiff, who claimed as an inhabitant of Littleport, had not the passage as such inhabitant, but as a subject.

*If the line of the plaintiffs' ferry be taken to be from Potter's Ferry Stairs only, and not from the whole isle, the defendants have not carried in that line, and the first count fails.

[*59

The second count, charging that the defendants carried near the line of ferry, for the purpose of evading it, raises another question. The owner of the ferry has a cause of action for carrying in the line of the ferry, whether it be done directly or indirectly. He has a right to the transport of the passengers using the way: and, if the alleged wrongdoer makes a landing-place near to the ferry landing-place, so as to be in substance the same, making no material difference to travellers, such a wrongdoer would be guilty of the wrong complained of in the second count: he would indirectly carry in the line of the plaintiff's ferry.

Then, have the defendants done this wrong? We think not. Cubitt Town is at such a distance from Potter's Ferry as is substantially important for those who have to pass therefrom to Greenwich: and it is found that the defendants had not the purpose of evading the plaintiffs' ferry, or of diverting traffic therefrom.

The principle by which to decide whether the proximity of a new passage across the water to an ancient ferry is actionable, has not been clearly laid down. It seems reasonable to infer, that, if the franchise of a ferry is established for facility of passage, and if the monopoly is given to secure convenient accommodation, a change of circumstances creating new highways on land would carry with it a right to continue the line of those ways across a water highway: and it is obvious that the single landing-place which sufficed for an uninhabited

marsh, would be utterly inadequate for several towns thronged with industrial mechanics. If one hundred of such labourers pass now to Greenwich *where one traveller passed in 1800, it seems oppres*60] sive to fix on such a large number of labourers the perpetually repeated loss of three-quarters of a mile of walking, for the sake of the small fraction of the toll which is the profit on each passenger, and unreasonable so to increase that profit. If the public convenience requires a new passage at such a distance from the old ferry as makes it to be a real convenience to the public, the proximity seems to us not actionable.

The authorities do not define, either in respect of ferries or markets, or the like, what proximity is actionable. Fleta, Lib. 4, c. 28, s. 13, describes the proximity of a new market which is actionable, to be seven miles, on the calculation of twenty miles a day for each person's travelling; and he therefore allows seven miles out and seven back, and time for marketing besides. Such a limit, on such a reason, might be suited to the simple wants of a rude life, where inhabitants are few, but is unfitted for large towns, where daily wants are greatly multiplied. Under the latter circumstances, it seems that the area within which a new market would become actionable would be diminished from a diameter of fourteen miles by the public need; and, on the same reasoning, the area for the monopoly of a ferry would depend on the need of the public for passage.

We now proceed to the cases. The dictum of Paston, in 11 H. 6, fo. 14, only affirms that case will lie for infringing the right of a ferryman, and does not touch the question of proximity. In Churchman v. Tunstal, Hardres 162, the complaint, by English bill, was, that the defendant carried over the Thames, in Brentford, three-quarters of a mile below the plaintiff's ferry for horses and passengers, and an injunction was prayed to stop it: the defendant contended that the re

straint which the plaintiff would lay on others was uncertain,

*61] *and at too great a distance: and the Court decided for him, because it came too near to a monopoly, and restrained trade. The decision by Lord Hale between the same parties, is said, in Huzzey v. Field, 2 C. M. & R. 432,† to have been different; but neither the point of law, nor the facts on which Lord Hale acted, are stated. In Tripp v. Frank, 4 T. R. 666, the plaintiff's ferry was from Hull to Barton. The defendant carried from Hull to Barrow, two miles below Barton, on the Humber. The judgment is for the defendant. Lord Kenyon says "If a person wishing to go from Hull to Barton had applied to the defendant, and he had carried them a little above or below the ferry, it would be a fraud on the plaintiff's right, and a cause of action. But here these persons were substantially and not colourably carried to a different place." And Ashhurst, J., adds, in effect, that it is unreasonable to require that a person crossing the Humber must be carried out of his way, on account of the plaintiff's ferry.

In Huzzey v. Field, 2 C. M. & R. 432,† the plaintiff had a ferry from Nayland to Pembroke Point. The main highway from Haverford to Pembroke passed by Nayland, and thence over the water to Pembroke Point, and so to Pembroke. Afterwards traffic to Milford Haven increased, and Pater Dock was built, and a landing-place at Hobbes's Point, half a mile from Pembroke Point, was made,-it being