CHAPTER XI.

CALLING AFFECTED WITH A PUBLIC INTEREST

§ 53. Property and calling affected with public interest. 54. Highways by water and those on land.

55. Common carriers affected with a public interest. 56. Same Nature of holding out.

57. Innkeepers affected with a public interest.

58. Dealers in articles of general necessity.

59. Grist and sawmills of public interest.

60. Insurance affected with public interest.

53. Property and Calling Affected with Public Interest.—As just seen, the use of private property so situated as to make that use in business draw to it an advantage amounting to a sort of constraint on the general public seeking services there offered or at hand, invests such property with a public interest and makes it cease to be juris privati only. But certain callings, as distinguished from the property employed therein have, under the common law, had attached to them the same burden of public interest as the property above referred to. How far this principle has been recognized and applied in American jurisprudence and decision and what it embraces of avocations and pursuits unknown to the times prior to our separation from the Mother Country, it is the purpose of this chapter to treat. In approaching this principle it is well to take into consideration some preliminary matters, so that the application of the principle may the better be apprehended.

54. Highways by Water and Those on Land.Highways by water as well as highways on land, may

be common or public or they may be private. But, whether public or private highways by water are such in their natural state, while highways on land are public or private accordingly as dedicated to, or reserved from, common use. Thus as to the former it has been said: "By the common law, some streams are private, not only in propriety or ownership, but also in use, as little streams and rivers that are not a common passage for the King's people. Again there are other rivers, as well fresh as salt, that are of common or public use for the carriage of boats and lighters; and then, whether they are fresh or salt, whether they flow or reflow or not, are prima facie publici juris, common highways for men or goods or both, from one island town to another. Harg, L. T., ch. III, pp. 8, 9. They are, it is said, highways by water, and all things of public safety and convenience, being, in a special manner, under the King's care, supervision and protection." This case is a leading one in American decision and has been cited approvingly by our Federal Supreme Court, and by many State courts.

3

But highways on or over land are established by human agency or on presumption of such establishment, as say, by prescription. It is to be remembered, too, that the only right the public has in a highway over land is not a right in the land itself, but in

1 Enfield Toll Bridge Co. v. Hartford & N. H. R. Co., 17 Com. 40, 63, 42 Am. Dec. 716.

2 West River Bridge Co. v. Dix, 47 U. S. (6 How.) 507, 12 L. Ed. 535.

3 Ely v. Parsons, 55 Conn. 83, 10 Atl. 499; Clark v. Hull, 184 Mass. 164, 68 N. E. 60; Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260, et passim.

an easement thereover. This is different, especially as to navigable waters, the surface of which and the soil thereunder belong to the public. Highways over land being established as conveniences do not tend to affect, generally speaking, property bordering thereon with a public use, but property on the shore of a navigable stream when used in connection therewith is a convenience to users of the streams and may make the property partake of a public character. Of callings or businesses using public highways are those of common carriers, and these are considered in the section next following:

55. Common Carriers Affected With a Public Interest.-There are common carriers by water highways and by land highways and with the signs of progress now at hand there may be in the near future common carriers by subterranean routes, horizontally or perpendicularly, and by aerial ways. As, however, there exists no essential distinction between carriers by water and those by land, or partly by one and partly by the other, so far as their public character is concerned, it may be anticipated, that new forms of locomotion and new spheres in the rendering of service will partake of the like character. The essence, at common law, of that in which the author is here concerned is spoken of ante,5 where it is shown there is a jus publicum in one holding himself out as a common carrier and not because he uses a public highway, whether that be by land or water. Is this principle imbedded in American law?

4 Bird v. Smith, 8 Watts (Pa.) 434, 34 Am. Dec. 483; Sec. 39, ante.

5 Sec. 28.

$56. Same-Nature of Holding Out. A holding out as a carrier for hire may be conclusively evidenced by its being incorporated as such, so that it may be treated as being affected with a public interest. This case, independently of its recognizing the principle in the Munn case as controlling, shows also that the common law as to common carriers became part of our law. Thus it states that: "In 1691, during the third year of the reign of William and Mary, Parliament provided for the regulation of the rates of charges by common carriers. This statute remained in force, with some amendments, until 1827, when it was repealed and it has never been re-enacted. No one supposes that the power to restore its provisions has been lost. A change of circumstances seemed to render such a regulation no longer necessary, and it was abandoned for the time. The power was not surrendered. That remains for future exercise when required."" Mr. Justice Story says: "To bring a person under the description of a common carrier he must exercise it as a public employment; he must undertake to convey goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire, as a business, and not as a casual occupation pro hac vice.s And this is true whether he holds himself out as a common carrier on land, or by water.10 These cases pre

• Chicago B. & Q. R. Co. v. Iowa, 94 U. S. 155, 161, 24 L. Ed. 94. 7 See also Winona & St. P. R. Co. v. Blake, 94 U. S. 180, 24 L. Ed. 99.

8 Story on Bailments, Sec. 495. See also Fish v. Chapman, 2 Ga. 349, 46 Am. Dec. 393.

9 Robertson v. Kenedy, 2 Dana (Ky.) 430, 26 Am. Dec. 466; Beckman v. Shouse, 5 Rawle (Pa.) 179, 28 Am. Dec. 653.

10 McClures v. Hammond, 1 Bay (S. C.) 99, 1 Am. Dec. 598; Craig

ferably have been cited as showing how from the very beginning in our jurisprudence, what is necessary to constitute one a common carrier. That these rulings still hold good it is only necessary to cite one or more recent cases.11 A common carrier exercises "a sort of public office and has public duties to perform in which the public is interested, "" and this applies as well to carriers of passengers as carriers of goods.18 We might not be much concerned this time about the reasons instanced by Lord Holt set forth in Coggs v. Bernard,1 indicating that it was "the policy of the law for the safety of all persons the necessity of whose affairs" compelled resort to those holding themselves out as common carriers, that they should be held to a very stringent liability. It is sufficient, that they are deemed to hold "a sort of public office," as our Supreme Court wells declares and that we perceive that from a very early day our common law undertook to regulate their affairs. The theory of a common carrier holding "a sort of public office" and having "public duties to perform in which the public is interested" seems far more satisfactory than that advanced by a very recent case.15 There the right

V. Childress, Peck. (Tenn.) 270, 14 Am. Dec. 751; Turney v. Wilson, 7 Yeager 340, 27 Am. Dec. 515; Williams v. Branson, 1 Murphey (N. C.) 417, 4 Am. Dec. 562.

11 Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34, 38, 52 N. E. 665, 70 Am. St. Rep. 432; Collier v. Langan & Taylor S. & M. Co., 147 Mo. App. 700, 127 S. W. 435.

12 Munn v. Illinois, 94 U. S. 113, 130, 24 L. Ed. 77; New Jersey Steam Nav. Co. v. Merchants Bank, 47 U. S. (6 How.) 344, 382, 12 L. Ed. 465.

13 Ga. Cent. R. Co. v. Lippman, 110 Ga. 665, 36 S. E. 202, 50 L. R. A. 673.

14 Sec. 28, ante.

15 Ex parte Dickey, 76 W. Va. 576, 85 S. E. 781, P. U. R. 1915 E. 93.