ERROR TO THE SUPREME COURT OF APPEALS OF THE STATE OF VIRGINIA.
MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.
The defendant in error, the plaintiff below, moves in the alternative to dismiss the appeal on the ground that the judgment recovered is not final, or to affirm the judgment on the ground of the manifest insufficiency of the errors assigned. The essential points of contention in the case related to the necessity of the property for the purpose of the petitioner, and to its necessity to the defendant for the proper exercise of its franchise. The judgment for the condemnation was conclusive upon both particulars. A right to condemn, as held by the Supreme Court of the State, is to be determined before the appointment of commissioners to estimate the amount of compensation to be made. Baltimore & Ohio Railroad v. Pittsburgh, Wheeling &c. Railroad, 17 West Va. 812. If the judgment had been different, all further proceedings would have been ended. Being for the condemnation, the estimate of the compensation, which was to follow, was to be made by commissioners, to be appointed, and might therefore be treated as being a distinct proceeding. The judgment appears to have been considered by that court as so far final as to justify an appeal from it; and if the Supreme Court of a State holds a judgment of an inferior court of the State to be final, we can hardly consider it in any other light, in exercising our appellate jurisdiction. The motion to dismiss must, therefore, be denied. But upon the motion to affirm, other considerations arise upon the 5th, 6th and 7th special pleas, which were held insufficient and rejected.
The fifth special plea sets forth, in substance, that the defendant was organized under a charter from the State of Virginia to erect a bridge across the Ohio River at or near the town of Wheeling; that in pursuance of the charter it erected and has for many years maintained for public use,
in consideration of tolls lawfully exacted, a wire suspension bridge extending from the eastern shore of the river at Tenth Street in the city of Wheeling to the eastern shore of Zane's or Wheeling Island; that it was empowered by the legislature to purchase, acquire and hold all ferry rights and privileges between Zane's Island and the main Virginia shore at the city of Wheeling; that in the year 1847 there was, and for many years had been, between those points, a ferry maintained and owned by certain parties named, together with the rights and privileges by law incident thereto; that in September, 1847, it acquired by purchase from them the said ferry and the rights and privileges thereof, and has since owned and enjoyed the same; that its present toll bridge was erected and has been maintained substantially in the location of the ferry, and by the use of the bridge for the public it has kept in full force and vigor the rights and privileges appertaining to the ferry. The plea also sets forth that at the time when the defendant acquired the ferry and the rights and privileges incident thereto, one of them was the exclusive right to transport persons, animals and vehicles across the Ohio River within the limits of one-half a mile from the ferry; and that the bridge proposed to be built by the petitioner is to be located, and the whole parcel of land proposed to be condemned is situated, within half a mile of the said ferry and of the defendant's bridge.
The sixth special plea embodies substantially the averments of the fifth, with an additional one to the effect that out of the powers and authorities granted to the defendant and the acquisition by it of the said ferry and the rights, privileges and franchises thereof, a contract arose between the State of Virginia and the defendant, that it should have and enjoy during its chartered existence, the exclusive privilege of transporting persons, animals and vehicles across the Ohio River at all points within half a mile of the location of the ferry; that upon the formation of the State of West Virginia it became a party to the contract and is bound by it, but that the legislature of the State, not regarding its obligations, in March, 1882, passed an act providing that corporations might be formed,
for the purpose of erecting and maintaining toll bridges over the Ohio River for the transportation of persons, vehicles and other things, and that no ferry privileges or franchises should preclude the erection of such bridges, or entitle the owner to damages by reason thereof. The defendant avers that this act of the legislature of West Virginia is unconstitutional and void, as impairing the obligation of the contract between West Virginia and Virginia and the defendant. The seventh special plea adds nothing material to the averments of the other two.
The contention of the defendant is, that by the acquisition of the ferry and its privileges, and the authority to construct its bridge, it has the exclusive right to transport passengers, animals and vehicles over the Ohio River at all points within half a mile of the bridge. The ferry which it purchased -- the one connecting the main land with Wheeling Island -- was licensed at an early day, and no exclusive privileges, such as are claimed now, were then attached to the franchise. The subsequent general law of Virginia, passed in 1840, prohibiting the courts of the different counties from licensing a ferry within half a mile in a direct line from an established ferry, had in it nothing of the nature of a contract. It was a gratuitous proceeding on the part of the legislature, by which a certain benefit was conferred upon existing ferries, but not accompanied by any conditions that made the act take the character of a contract. It was a matter of ordinary legislation, subject to be repealed at any time when, in the judgment of the legislature, the public interest should require the repeal. The mere purchase by the defendant of existing rights and privileges added nothing to them. It would be absurd to suppose that the transfer from vendor to vendee gave them any additional force or validity. Here the prohibition of the act of 1840 was only upon the county courts, and that in no way affected the legislative power of the State. Fanning v. Gregoire, 16 How. 524. Nor did the charter of the defendant contain any inhibition upon the State to authorize the establishment of another bridge within the distance claimed whenever the public interest should require it. An alleged surrender
or suspension of a power of government respecting any matter of public concern must be shown by clear and unequivocal language; it cannot be inferred from any inhibitions upon particular officers, or special tribunals, or from any doubtful or uncertain expressions. As was said substantially in the case of Charles River Bridge v. Warren Bridge, 11 Pet. 420, 548, whenever it is alleged that a State has surrendered or suspended its power of improvement and public accommodation on an important line of travel, along which a great number of persons must daily pass, the community has a right to insist that its surrender or suspension shall not be admitted, in a case in which the deliberate purpose of the State to make such surrender or suspension does not appear; referring to several adjudications of this court in support of the doctrine. And whatever of exclusiveness there was in the privilege extended by the act of 1840 within half a mile on each side of an established ...