delivered the opinion of the Court.
The bill in.this case was brought to prevent the infringement of a ferry privilege.
The appellee, William N. Menefee, under a license granted by the County Court, established a ferry at a point where the military road, leading from Little Rock to Yan Burén, crosses Cadron Creek, in Conway county. After the ferry of the appellee was established, and had gone into operation, John Murray, the appellant, also procured a license from the County Court, and established a ferry on the same stream, within one mile of that of the appellee.
The proof shows that the ferry of the appellant had the effect to divert, and did divert, a portion of the traveling public from the ferry of the appellee. The prayer of the bill was, that the license granted to the appellant be canceled, and he restrained from the further use of his ferry, and the Court below so decreed.
The Legislature, with a view to the public convenience, has conferred on the County Court the power to grant ferry privileges. The 1st section of the act provides that all ferries over any public navigable stream in this State, shall be deemed public ferries.
By sections 7 and 11, it is provided, that any person wishing to establish a ferry, shall apply to the County Court, and on showing that he is in possession of the land where the ferry is sought to be established, and that its establishment will promote the public convenience, the court shall grant him a license for the term of one year. When the license has been so granted, and the ferry once established, it is made the duty of the County Court to levy a tax on the privilege annually thereafter, whether application for a renewal of the license be made or not; and the duty of the clerk to issue, annually, a license, and deliver it to the sheriff for the person to whom the privilege was granted, who, on presentation of the license, is bound to pay for it. - See secs. 15, 16, 17, 18, 19. And the 20th section provides, that the County Court “ shall not permit any ferry to be established within one mile above or below any ferry previously established, except at or near cities or towns, where the public convenience may require it, and satisfactory proof of the same shall be first adduced. Gould's Digest, ch. 70. The obvious construction of these provisions is, that when the County Court has once granted the privilege of keeping a public ferry, the privilege is exclusive within the distance, and subject to the restriction mentioned in the 20th section, so long as it is exercised under the annual grant of license provided for by the statute. It is a private vested right which the law will not suffer to be infringed by a rival ferry, unless the public convenience require it; and not even then, except “ at or near cities or towns.”
The establishment of a public ferry is not unfrequently attended with heavy expenditures. Under our statute the grantee is held to a strict performance of certain duties imposed by law, and subject to penalties if he neglect them. By making the privilege to some extent exclusive, the Legislature, doubtless, intended to subserve both private rights and public interest. Was there a town at or near the ferry of the appellant?
In this country, there seems to be no precise legal definition of the term “ town,” and we suppose it was used in the statute in its popular sense. In the case before us, the proof is substantially the following: The place claimed to be a town is designated “ Cadron,” situate on the Arkansas river,below the mouth of Cadron Creek; the courts for Conway county were held there from 1826 to 1828, but never afterwards; in the language of the witness, it was “ abandoned” in 1831, and continued “ abandoned” until 1845 or 6. In 1855 — when the ferry was established — there was at “ Cadron” one store, which did business to the amount of about $4,000 per annum; dwelling house for two families, and out-houses; the population consisted of two families, numbering in all, six persons; one warehouse, from which, in 1855, produce to the value of $200 was shipped, the trade of that year being injured in consequence of drouth and low water. In 1854 — which was a favorable year —the exports amounted to the value of about $1,500. To call this a town, in any sense, would be an obvious misapplication of the term1 The appellant having failed, then, to show the existence of a city or town, at or near his ferry, any enquiry as to the public convenience becomes immaterial, as both of these must concur to authorize the establishment of a rival ferry. Vide Cloyes et al. vs. Keatts, 18 Ark. 22.
It is contended for the appellant that Cadron, not being a public navigable stream, within the purview of the statute,the establishment of the appellee’s ferry, under the order of the County Court, vested no exclusive right, and did not, therefore, preclude the appellant from establishing his ferry under a like order; and that if such was the intention of the Legislature, it was, in effect, an appropriation of private property to public purposes, which could not be done without compensation to the owner. The reverse of this proposition we understand to be the law. The 36th section of the statute expressly provides, that where a public road crosses a “ private stream, the bed of which may belong to any individual,” the County Court, if, in their opinion, the public convenience would be thereby promoted, may make an order declaring such crossing to be a public ferry, and “ when so declared, such ferry shall be and remain a public ferry during the pleasure of the court, and be subject to all the regulations and restrictions that are made by this act applicable to public ferries on navigable streams.”
It is conceded in argument that the owner of a ferry, provided for by this section, is held to the performance of the duties, and is subject to the penalties incident to ferries across navigable streams, and we see nothing in the statute which would warrant a denial of the exclusive right, also incident to that class of ferries.
The grant of an exclusive ferry franchise to the appellee, so as to prevent other individual proprietors of the bed of the stream above or below him, from materially impairingits value by affording facilities for crossing over the traveling public in violation of the grant, was not an appropriation of private propertjr to public uses. It was a mere inhibition upon the use of their own property in such manner as to interfere with the vested rights of another, imposed by law, in regulating the public highways. Nothing was taken from them, because a ferry franchise being the creature of sovereign power, no one can exercise it without the consent of the State, and when, pursuant to regulations prescribed by the Legislature for the general good, it is granted in terms exclusive, the law takes care that the grant be not violated, and its value impaired; and that a court of chancery may be successfully resorted to, in such cases, is now too well settled to admit of discussion. Croton Turnpike Co. vs. Ryder, 1 J. C. R. 611; Livingston vs. Van Ingen, 9 Johns. R. 507; Charles River-Bridge vs. Warren Bridge, 11 Pet. 428; Benson vs. Mayor of New York, 10 Barb. 224.
As a further ground of defence, the appellant relies on the judgment of the County Court granting him a ferry license, as an estoppel, and contends that it cannot be reviewed collaterally and set aside forever.
That the judgment, if it were binding on the appellee, could not be enquired into collaterally and impeached for error, is not denied. But was it binding? To determine this question, it is necessary to ascertain the true character of the proceeding in which the judgment was pronounced. The statute, as we have seen, provides, that any person wishing to establish a feny, “ shall apply to the County Court, and on showing that he is in possession of the land where the ferry is sought to be established, and that its establishment will promote the public convenience, the court shall grant him a license. The mode of the application — whether by petition or motion — is not indicated, nor does the statute require that notice, special or general, of the application or proceeding, shall be given by publication or otherwise. Now, it is not pretended that this is a proceeding in personam; nor is it a proceeding in rem, in that sense which makes all the world parties to it, for, besides, wanting the characteristics which distinguish a proceeding strictly in rem, (vide Mankin vs. Chandler & Co., 2 Brockenbrough’s Rep. 125; Sturdy & Wife vs. Jacoway et al., 19 Ark. 515,) it may be safely asserted that the Legislature never designed to make the action of the County Court conclusive of the private rights of the citizen without providing, in some measure, for notice of the proceedings by which these rights were destroyed, thus depriving him of his property without even the opportunity of being heard. An application under the statute for a ferry privilege, is an ex parte proceeding. In granting or refusing the privilege, the court acts judicially, and its judgment being pronounced in a matter touching the public convenience, however erroneous, is binding and conclusive on all persons who had no other than a public interest in the proceeding, held in common with the rest of the community, and upon this principle it is, that a party possessing a public interest merely could not question^the proceeding, even directly, by appearance in the County Court, 24 Ala. 282; but the judgment does not conclude the rights of any one whose private interest — by which is meant an interest in property, something capable of individual ownership, which relates to him separately, and exists as a private right, which he, as an individual may vindicate — has been invaded by it; unless by voluntary appearance in the County Court, he made himself a party to the proceeding. There is no proof in the record that the appellee did so appear, and consequently his rights were not concluded.
The decree of the Court below must be affirmed with costs.