1. The point first made by the appellants is not maintainable. The argumentproceeds upon erroneous views of the nature of the privilege of ferry granted by our statutes, and the rights and obligations respectively created by and between the public and the party procuring the license, who are the parties to the contract.
Section 6 of the Act of 1855, concerning public ferries, employs the following prohibitory language: " No ferry or tollbridge shall be established within one mile immediately above or below a regularly established ferry or toll-bridge, unless it be required by the public convenience, or when the situation of a town or village, the crossing of a public highway, or the intervention of some creek or ravine, shall render it necessary." And further, as if by way of carefully guarding this exclusive right for the use and benefit of the grantee, the same section requires, that upon application for any such ferry, notice of ten days shall be given to the " proprietor" of the then existing ferry, and the application made to the same tribunal, etc.
The respondents insist that under the principle established in the case of the Charles River Bridge, 11 Peters R., the plaintiffs, by their contract with the State, were clothed with an exclusiveright within the limited distance, for an infringement of which the Courts of the State, by the rules of the common law, will afford relief in the form of damages. (See 1 Nott & McCard, 387; 3 Murph. R. 57; 6 Dana R. 43; 2 Edwards' V. C. Repts, 304.)
JUDGES: Murray, C. J., delivered the opinion of the Court. Burnett, J., and Terry, J., concurring.
OPINION
MURRAY, Judge
This was an action on the case, brought by the owner of a ferry, licensed under the Act of 1855, against the defendants, for running a ferry-boat without a license, within one mile of the plaintiffs' ferry.
The eighteenth section of the Act provides that any person who shall run a ferry, for compensation, without having first obtained a license, shall be deemed guilty of a misdemeanor, and shall be punished by a fine, not exceeding $ 500. The sixth section provides that no ferry or tollbridge shall be established within one mile, immediately above or below a regularly established ferry or toll-bridge, unless it be required by the public convenience, etc.
It is contended that this section confers on the party an exclusive privilege, and that he may maintain a civil action against any one who intrudes upon or injures the franchise.
This is not the true operation of the statute; it confers only a limited right upon the party, for the protection of which provision is made by indictment. Where a new right is introduced by statute, the party complaining of its violation is confined to the statutory remedy, so far as the Courts of Common Law are concerned. If, however, the right existed at common law, the remedy provided by statute is merely cumulative. (See Lang v. Scott, 1 Blackf. 405; Almy v. Harris, 5 Johns. 175; Shorter et al. v. Smith et al., 9 Georgia, 517; People v. Craycroft , 2 Cal. 243.)
Ferry-privileges are created by statute of this State, and no remedy by an action on the case is given. Our conclusion is strengthened by the fact that the former act, providing a remedy by a civil action, has been repealed.
We do not wish to be understood as deciding that the party aggrieved may not resort to a Court of Chancery for relief; for, under the decision of this Court, in the case of Norris v. The Farmers' and Teamsters' Company , 6 Cal. 590, that right is directly affirmed.
Judgment reversed.