FROM HERTFORD. Upon the trial before DANIEL, J., the jury returned a special verdict as follows: "That Thomas Wynns was seized in fee of a tract of land situate in Hertford county, on the south side of Chowan river; that he was also seized in fee of another tract in Gates county, (403) directly opposite the former, on the north side of the river; that the river Chowan is a public river, navigated by sea vessels; that from the year 1790 until the year 1825, when the said Thomas Wynns died, he had kept up a ferry across the river, landing on each side upon his own premises; that during all this time he had taken tolls *Page 259 for transporting persons across the said ferry; that it did not appear that the said Thomas Wynns had ever obtained an order of the County Court establishing the said ferry; that the road to it from the south had ever been a public highway; that on the north side the way to the ferry from the nearest public road was made through the swamp by the father of the said Thomas Wynns, and had ever been used by the public, and had, together with the landing places on each side of the river, been kept in repair at the expense of said Thomas and his father; that the said Thomas died intestate in the year 1825, seized in fee of the lands before described, and leaving Margaret Pipkin, one of the plaintiffs, one of his heirs; that the defendants are also heirs of the said Thomas; that soon after the death of the said Thomas the defendants applied by petition to the County Courts of Hertford and Gates for an order to keep the said ferry, and were by the said courts appointed ferry-keepers; that no notice of this application was given to the plaintiffs, and that the defendants ever since the said order was obtained have kept and used the said ferry.
The presiding judge, upon the authority of Rayner v. Dowdy, 5 N.C. 279, held that the plaintiffs had no interest in the ferry, and gave judgment for the defendants upon the verdict, from which the plaintiffs appealed. Rayner v. Dowdy, 5 N.C. 279, or the reasoning upon which it is founded, stands directly in the way of a correct decision in this case. That case was argued on one side only, and was not well considered.
The sole and exclusive right of transporting persons over water courses for tolls (by which is meant price independent of contract) resides in no individual; it belongs to the sovereign. But the right of transporting persons on water courses may belong to an individual, and he may by contract, express or implied, receive hire for so doing. It is the exclusive right which makes the franchise. Where the sovereign, as owner of the land, possesses the power of transporting persons, his grant in such cases will communicate the whole franchise. Where the sovereign is not the owner of the land, his grant communicates only the exclusive right; for a sovereign cannot grant that which he has not more than any individual. If I am owner of the land at the place of landing on both sides of a river, and the sovereign grants this right to another, it is granting (405) that which is in me, and the grant is void. If a ferry be *Page 260 necessary at that place for the public good, the land may be taken by the sovereign for that purpose; but it must be taken in the manner prescribed by law, by which I am compensated for my loss. What interest in the land passes to the sovereign by establishing over it a public highway? The right of passing only and of taking the necessary materials (adjoining or convenient) for repair. The residue of the dominion or property remains in the former proprietor. It remains his freehold still. For the uses and purposes of the highway, it is the sovereign's; for all other purposes it is the former proprietor's. The right of using it as a landing place for a ferry has never been taken from him; and although there is scarcely a perceptible difference between stepping from a boat on the land laid out as a public road, and stepping from land to land, yet that has never been taken from the former proprietor for such purposes, as he has never been compensated for the right of transporting persons across the water course, as that was not considered when the price of taking the land for a highway was fixed; and although it is of but little value without the franchise, yet his ownership of the land gives him the preferable right to call for the franchise when a ferry becomes necessary. This right is valuable, for unless there are good reasons to the contrary, the sovereign must grant it to the owner; as sovereigns are bound to be just. A grant to another without good reasons is void, as an act of injustice. It cannot, therefore, be arbitrarily and capriciously granted to another. And when it is so done without hearing the owner, by which is meant without giving him an opportunity of being heard, it is prima facie an act of injustice, and the grant is void. If it is asked what is to be done if the owner of land where a ferry is necessary refuses to receive the (406) franchise, it is answered, pay him for his land and grant it to another. The law has prescribed a method whereby land wanted for public purposes may be taken from an individual. But, then, the owner is always compensated for what is taken from him. Let it not be taken, as it were, surreptitiously; taken for one purpose and used for another; taken for a road and used for a ferry. The owner is to be considered as refusing to call for the franchise when he omits to perform what is required by law of those appointed (in the language of our law) ferry-keepers. If, when appointed, he does not perform the duties of a ferry-keeper, he is liable to all the penalties of those who abuse a franchise to be inflicted by indictment quo warranto, or other means prescribed by law. But it is not to be expected that the owner of the land will not call for the franchise. Men generally pursue their own interest, and if the owner cannot by reason of poverty or other cause use it himself, he can hire it to others. But we are not to act upon such suppositions. When they occur the law has provided a remedy for them. *Page 261
I have considered this case as if the landing on the northern side of the river was a public road. But it is the property of the heirs of Thomas Wynns, of which the plaintiff is one. We are satisfied, notwithstanding the decision in Rayner v. Dowdy, that the Court cannot grant the franchise to any but the owners of the land, at least until the owners shall be in default. Nor had the defendants, as a part of the heirs of Thomas Wynns, a right to call for the franchise to themselves in exclusion of the others, as the lands descended to all the heirs.
We are of opinion, also, that in this case the long use is sufficient to raise the presumption of a grant; but this it is unnecessary to consider.
The Judge below felt bound by the decision of Rayner v. Dowdy. I think from his bottoming his judgment entirely on that case, he would have decided differently, if he conceived himself free to (407) act.
PER CURIAM. Judgment reversed, and judgment entered for the plaintiff.
Cited: Rogers v. Mabe, 15 N.C. 190; Barringer v. Ferry, 69 N.C. 170,173; Broadnax v. Baker, 94 N.C. 677; Bridge Co. v. Flowers, 110 N.C. 385;Comrs. v. Bonner, 153 N.C. 68.