Chap. VI. Nuisances to ferries. the Crown, and in the case of a ferry by prescription, a grant or licence is presumed (s). A ferry is the continuation of a public highway across a river or other water for the purpose of public traffic from the termination of the highway on one side to its re-commencement on the other side (t). A ferry is wholly unconnected with the ownership or occupation of land. It is not necessary that the owner of the ferry should have a property in the soil on either side. He must have a right to land upon both sides, but he need not have the property of the soil on either side. It is sufficient if the landing-place be a public highway (u). A ferry exists only in respect of persons using the right of way. The right of the grantee of a ferry is the exclusive right of carrying from one point to the other all who are going to use the highway to the nearest town or vill to which the highway leads on the other side (r). The owner of a ferry is under the obligation of always providing proper boats with competent boatmen and all other things necessary for the maintenance of the ferry in an efficient condition for the use of the public (y). If a new ferry is erected on a river, without the King's licence, so near an ancient ferry as to draw away its custom, it is a nuisance to the owner of the ancient ferry (2). 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 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 difference to travellers, he would indirectly carry in the line of the owner of the ferry (a). But in considering whether the owner of an ancient ferry has (8) Huzzey v. Field, 2 Cr. M. & R. 440; Letton v. Goodden, 2 Eq. 123. (t) Ib.; Newton v. Cubitt, 12 C. B. N. S. 58, 13 C. B. N. S. 864. (u) Ib.; Peter v. Kendal, 6 B. & C. 710; Att.-Gen. v. Simpson, (1901) 2 Ch. p. 718. (x) Huzzey v. Field, 2 Cr. M. & R. 440; Newton v. Cubitt, 12 C. B. N. S. 58, 13 C. B. N. S. 864. (y) Letton v. Goodden, 2 Eq. p. 131; Att.-Gen. v. Simpson, (1901) 2 Ch. 671, 692, 718. (z) Ib.; Leamy v. Waterford and Limerick Railway Co., 7 Ir. C. L. 27. (a) Newton v. Cubitt, 12 C. B. N. S. 58. a ground of action against a person who sets up a new ferry in the neighbourhood of the ancient ferry, the interests of the public will be regarded. The area of the monopoly of a ferry will depend on the need of the public for passage. A limit which would be suited to the simple wants of a rude life, where inhabitants are few, is unfitted for large towns where daily wants are greatly multiplied. 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 is not actionable (b). The owner of a ferry cannot maintain an action for loss of traffic against a person opening a new highway to meet a public road, though such new highway crosses the water near the ancient ferry, and diverts from it a part of the traffic (c). It is, indeed, very questionable whether the exclusive right of the owner of a ferry extends beyond the carriage of passengers by boat (). A ferry being a franchise and therefore an hereditament is land within the meaning of the Lands Clauses Act. In Queen v. Cambrian Railway Co. (e), the owner of a ferry was held entitled to compensation for disturbance of his franchise from a railway company for building a bridge, which not only carried the railway but was also a foot bridge, though the making of the bridge was authorised by statute. But if the bridge be merely a bridge for carrying the railway, the owner of the ferry cannot bring an action for disturbance of custom, unless he can establish loss of custom in fact by making use of the railway (ƒ). Chap. VI. SECTION IX.-NUISANCES TO MARKET. ANOTHER class of cases in which the interference of the Court by injunction has been sought are nuisances to rights of market (g). (b) Newton v. Cubitt, 12 C. B. N. S. 58, 13 C. B. N. S. 864; Dixon v. Curwen, W. N. (1877) 4. (c) Hopkins v. Great Northern Railway Co., 2 Q. B. D. 224. (d) Ib. (e) L. R. 6 Q. B. 422. (f) Jones v. Stanstead, &c., Railway Co., ib. 4 P. C. 118. (g) Great Eastern Railway Co. v. Goldsmid, 9 App. Ca. 927; Horner v. Whitechapel Board of Works, 55 Chap. VI. Right of market. The right to a market is a franchise and may exist by charter, by prescription, or by Act of Parliament (h). It is not essential to make a right of market good that it should be granted to a person who had actually got the freehold or ever had an interest in the land. The grant of a right of market is a franchise which gives to the person to whom it is granted the right to exercise it if he can. If the owner of the land over which a right of market has been granted, leases his land to the grantee of the right of market for the purpose of holding the market, the franchise may be exercised, so long as that state of things continues (i). If the Lord of a Manor proves a market immemorially held in certain places within the manor, it is not a necessary inference that the market was granted to be holden in those places only, but a jury may presume that the market was granted to be holden in any convenient place within the manor (k). The grant of a right of market gives the grantee the right, if he has done nothing to forfeit it, to hinder other persons from meddling with the franchise. He is entitled to hold the market during market hours, and cannot be interfered with even though an obstruction of the streets which, but for such grant, would amount to a nuisance, be thereby caused (1). The grant of a market does not of itself confer the right to prevent persons from selling on market days in their own shops, though within the town or manor where the market may be held (m); but the right may be acquired by immemorial enjoyment or prescription (n). The right to take tolls from the customers is usually but not necessarily a part of the privilege (o); and the tolls are due L. J. Ch. 289; Att.-Gen. v. Horner, (h) De Rutzen v. Lloyd, 5 A. & E. 456. (i) Att.-Gen.v. Horner, 11 A. C. 80. 456. (1) Att.-Gen. v. Horner, 11 A. C. 80. Chapman, 12 M. & W. 18. (n) Mosley v. Walker, 7 B. & C. 40; Mayor, &c., of Penrhyn v. Best, 3 Exch. D. 292, 300 (C. A.); and see Abergavenny Improvement Commissioners v. Straker, 42 C. D. 83. (0) Heddy v. Wheelhouse, Cro. Eliz. 558, 592; Rex v. Starkey, 7 A. & E. 106; and see Newcastle (Duke of) v. Worksop Urban Council, (1902) 2 Ch. 156, 157. either in respect of goods sold there or for stallage or pickage or the like in respect of stalls or poles fixed in the soil (p). It is however essential that the tolls imposed be reasonable in amount; if the tolls exacted are unreasonable, the franchise is illegal and void (9). Chap. VI. Sect. 9. market. A man who has the franchise can maintain an action against Disturbance of any one who sets up a rival market so as to injure him, though it is not on the same day, provided it is within such a distance as to injure him (7). The fact that there may be a statutory remedy does not exclude the remedy by injunction unless the statute expressly or by necessary implication excludes that remedy, and the Court will not infer this intention from a provision for the purpose of protecting the right (s). Persons alleging statutory rights in a market, and claiming an injunction and account, may bring a representative action if the relief sought is beneficial to all whom the plaintiffs represent. The rule is not limited to persons having a beneficial proprietary interest, nor need the nominal plaintiffs have been wronged in their individual capacity. The Attorney-General is not a necessary party to such an action (t). It is not necessary to constitute disturbance of market that the defendant should claim to have a rival exclusive right of market. There is a disturbance of market where a man sets up a rival place of sale in such a way as to injure and deprive the plaintiff of the benefit of the franchise (u). The sale however by a man in his own shop in the regular and ordinary course of business of goods similar in their nature to those sold in the market is not a disturbance of market (x). But a man may not under the right to sell marketable articles in (p) 2 Inst. 219. (9) Heddy v. Wheelhouse, Cro. Eliz. 558, 592. (r) Yard v. Ford, 2 Saund. 500; Moseley v. Chadwick, 7 B. & C. 47 n.; Great Eastern Railway v. Goldsmid, 9 App. Ca. 957, per Lord Blackburn. (8) Stevens v. Chown, (1901) 1 Ch. 894. See Att.-Gen. v. Ashborne Recreation Ground Co., W. N. (1902) 208. (t) Bedford (Duke) v. Ellis, (1901) A. C. 1. (u) Prince v. Lewis, 5 B. & C. 363; Great Eastern Railway v. Goldsmid, 9 App. Ca. 927. (x) Mayor, &c., of Manchester v. Lyons, 22 C. D. 307. Chap. VI. his own shop act in such a way as to set up a market in rivalry to the legal one. In order to determine this question all the elements in the case must be taken into consideration, although not one of them might be conclusive upon it (y). A man for example who erects a pen for cattle where he collects them and sells them by auction cannot say that he is selling in his own shop (2). A sale indeed by auction is not what people generally understand by selling in a shop (a). There is a disturbance of market by intendment of law if a rival market is held on the same day; if the rival market is held on a different day, it is only evidence of disturbance for a jury (b). To support an action for disturbance of market, it is not necessary that the defendant should have actually sold: any active interference by him in the conduct of the new market or participation in its profits or risk is sufficient (c). Failure on the part of the lord of the market to afford sufficient accommodation for the public is not a defence to an action for disturbance by the setting up of a rival place of sale. Nor is the fact that the market may be so occupied and so used that if more people than actually came to it wished to do so, they would find difficulty in getting in, an excuse for disturbance of the market (). Nor is the fact that the lord of the market did not maintain the market in good and sufficient order a bar to an action for disturbance of market; but if it be the fact that it did prevent a person from using the market, that may disprove the allegation that he had disturbed the market by selling as he did, inasmuch as he could not have sold in the market but was prevented from doing so (e). (y) Pope v. Whalley, 6 B. & S. 311. (z) Fearon v. Mitchell, L. R. 7 Q. B. 690; Elwes v. Payne, 12 C. D. 476. (a) Fearon v. Mitchell, L. R. 7 Q. B. 690. (b) Mayor, &c., of Dorchester v. Ensor, L. R. 4 Ex. 335. (c) Mayor, &c., of Dorchester v. Ensor, L. R. 4 Ex. 335. (d) Great Eastern Railway Co. v. Goldsmid, 9 App. Ca. 943. (e) Ib. 961. |