Definition
Disturbance of franchise is the wrongful interference with a person's or entity's lawful exercise of a franchise, diminishing the profits or benefits arising from it. The term encompasses any act by which the holder of a franchise is impeded, incommoded, or damaged in the enjoyment of that franchise right, whether by a private party or by a public actor acting without legal authority.
The concept presupposes a valid, existing franchise — that is, a right or privilege granted by the sovereign or by law — and treats interference with that right as a distinct legal wrong giving rise to a special action on the case. The injury is typically measured by the diminishment of profits or the practical deprivation of the franchise's value, rather than by outright destruction of the right itself.
Common Confusion
Disturbance of franchise should not be confused with forfeiture or revocation of franchise. A forfeiture or revocation terminates the franchise right, usually through governmental action or the franchise holder's own misconduct. A disturbance leaves the franchise intact but wrongfully hinders its exercise, typically at the hands of a third party. The two wrongs require different remedies: revocation challenges typically require proceedings against the grantor, while a disturbance of franchise action runs against the interfering party.
The term also should not be conflated with modern usage of "franchise" in the commercial sense of a licensed business system (e.g., a fast-food franchise agreement). The historical doctrine developed around public or quasi-public franchise rights — ferry rights, market rights, toll rights, rights of common — not private commercial licensing arrangements.
Why It Matters in Research
This is primarily a historical common law doctrine. Researchers will encounter it most frequently in pre-twentieth-century materials, particularly English common law sources and nineteenth-century American cases and treatises. It is rarely litigated by that name in modern courts, but understanding it is essential for interpreting historical franchise disputes, public utility history, and the foundations of modern regulatory takings doctrine.
Several research traps are worth flagging:
First, the word "franchise" in older sources carries a substantially different weight than in modern usage. In Blackstone and in the authorities cited by Bouvier and Burrill, a franchise was a royal or sovereign privilege — a right to hold a market, operate a ferry, collect a toll, or exercise some other public function. Researchers importing modern commercial franchise concepts into historical cases will misread the doctrine entirely.
Second, the remedy structure matters for corpus navigation. Bouvier notes that the remedy is a special action on the case — not trespass, not assumpsit. This means that in historical court records and reporters, these cases will be indexed under "case" or "action on the case," not under "franchise" or "disturbance." Researchers searching historical databases by subject heading may miss a substantial body of relevant material.
Third, equity had a parallel track. Bouvier identifies equity court authority to grant injunctions against disturbance of franchise, with references to both New York and federal chancery decisions. Researchers should check both law and equity reporters when tracing a franchise dispute from the nineteenth century.
Fourth, Burrill flags a closely related category — disturbance of office — as a distinct but analogous wrong. Where the franchise at issue is tied to a public office or official function, the two doctrines may overlap, and historical sources treat them separately.
Finally, this doctrine sits at the historical root of modern public utility regulation and takings analysis. The principle that a franchise holder has a protectable property interest in the profits of that franchise informed later constitutional doctrine around the impairment of contracts and regulatory takings. Researchers working on the history of public utility law or constitutional property rights should treat disturbance of franchise cases as upstream authority.
Historical Dictionary Support
The four source dictionaries show a consistent core with modest variation in detail. Black's and Burrill offer nearly identical definitions, both tracking Blackstone's formulation (3 Bl. Com. 236) and emphasizing that the wrong consists in diminishment of profits. Burrill is the more thorough of the two, adding references to Stephen's Commentaries and Crabb's Real Property, and noting the related doctrine of disturbance of office.
Bouvier provides the most practically useful entry for litigation research, identifying the specific procedural remedy (action on the case), supplying case references across multiple jurisdictions, and noting equity's concurrent authority. Bouvier's references to Croke, Saunders, and the New Hampshire and Maryland reports give researchers threads to pull for primary sources.
Rapalje & Lawrence adds nothing substantive here, directing readers back to the general "Disturbance" entry — a characteristic economy that reflects that dictionary's structure but limits its utility for this specific term.
None of the historical dictionaries address the modern commercial franchise context, which is as expected given their vintage. What they do not address — and what no historical source adequately covers — is the transition from this common law doctrine to the statutory and regulatory frameworks that displaced it in the twentieth century.
Jurisdictional Note
The doctrine developed in English common law and was received into American law, where it appeared most prominently in nineteenth-century state court decisions involving ferries, markets, and toll roads. Application varied by state depending on how franchise rights were defined and protected under local law. Modern practitioners should assume that any live version of this doctrine has been substantially modified or displaced by statute in their jurisdiction.
Encyclopedia Cross-Reference
Public Utilities, Franchises, and Rate Regulation at the Local Level (The Law Mind Administrative Law & Government Encyclopedia) — admin_85
Specialized Contracts: Franchise Agreements and FTC Franchise Rule (The Law Mind Contracts & Commercial Law Encyclopedia) — contracts_214 (useful for contrast; the commercial franchise doctrine developed separately from the historical disturbance doctrine)