DISSENTING OPINION BV
Eaicin, J.I am dissatisfied with the verdict in this case,, and think there should be a new trial. It was evidently-rendered on the ground that the plaintiff had a vested ferry franchise, which, but for the obstructions placed in his way by defendant, he could have made useful at an expense of about one hundred dollars, whereas now it would cost him five hundred dollars. There is no other evidence upon which a verdict of four hundred dollars can be rested.
In truth the plaintiff had no ferry there, nor license to keep one, and never had — neither he nor any one else. He-owned the. laud upon the bank of the Arkansas river, over-which the railroad track went down on an incline to the water, and which would have been a good place for a ferry. But there was another long established ferry near by, at the-town of Van Burén, which is not shown to have been inadequate to the demands of public convenience. He did not own the opposite bank. There was no public road leading; to his ferry point. It could only be approached over lots of others in the town of Van Burén, and the consent of the owner of these lots could not be obtained. The plaintiff’s lessee to whom a lease had been given for the purpose, had made an effort to get the road opened by proper authority, and had failed; and discouraged thereby, had not made any application to the county court for license. The land itself for any other purpose, had no estimable value.
Conceding-the full authority of the case of Boom Co. v. Patterson, 98 U. S., as applicable to the facts of that case, it does not determine this. It was not questioned in that case that the plaintiff might have got a license for a boom, nor did anything show any impediment to it, if the defendant company had not taken his island. The court simply held that the market value of the island for booming purposes, might betaken into account in measuring damages.
In this case, it would be impossible to say what, subject to the contingencies, the value of the plaintiff’s land for ferrying purposes might be. It would be nothing if the county court should deem it not required for public convenience, or if he could not get a road laid off to it over the lands of others, who apirear to have opposed it, and then it would have been only a right of ferriage from one bank, near by and in competition with an old established ferry, still in operation.
I cannot concur in holding that damages so remote and contingent can be estimated in an action in which no fraud, violence nor oppression is charged. It seems to obliterate all distinction in civil actions, between such damages as are direct and immediate, and such as are remote and contingent. It seems to say that inasmuch as plaintiff might possibly have obtained permission, sometime in the future, to work a ferry there, and might possibly have a public road established to run to it, that therefore the railroad company shall now pay him, as damages, the increased cost of making a road down the bank when needed.
The plaintiff had granted the right of way upon condition that the approaches to the ferry should not be injured, and the real gravamen is the injuiy to the approaches, rather than damage to the land itself, by entering and taking the right of way. Viewed therefore as an action of trespass, claiming injury to the land, of a permanent character, it would be proper to show the value of the land in market before the incline was built, and its value afterwards. Doubtless the chances of getting the assent of- the county court to establish a ferry there, and the probability of having property of others condemned for a county road -to reach it, and the probable costs of that by way of compensation, and the prospective-value of a one-sided ferry in ■close competition with an old one, would all be elements •either of damage or of market value. But the true test is what would the property have been actually worth in the existing state of things before the incline was built, and how much was it deteriorated. Not wh’at it would have been worth “with the ferry privilege” and “without the ferry privilege. ”
A ferry franchise is a sovereign right at common law. It belongs to no citizen, whether riparian owner or not, until granted by the sovereign. It is not appurtenant to the soil, but the common law doctrine was that it ought not to be granted except to one who owned the bank. Oomyn’s Dig. Hile, “Piscary,” (B), Ferry. Still there is no property in it till granted. Our statute has not altered the common law in that regard. In Murray v. Menefee, 20 Ark., 561, under our statute, the court announced that a ferry franchise is the creature of sovereign power, and that no one can exercise it without the consent of the state. This consent is given by the county court, and in giving or withholding it,' the court exercises judicial discretion. When it has been granted it becomes a private vested right, (see same case), which the court gays “the law will not suffer to be infringed by a rival ferry unless public convenience requires it; and not even then except “at or near cities and towns.” The court proceeds to say that the establishment of a public ferry is not unfrequently attended with heavy expenditures, and the grantee is held to the strict performance of certain duties, and is subject to penalties for neglect, “By making the privilege to some extent exclusive the legislature, doubtless, intended to subserve both private rights and public interests.”
The locus in quo is near Van Buren where there is already an established ferry. The owner of that franchise, too, is-entitled to be considered by the county court. He has incurred probably, almost certainly, heavy expenditures to subserve the public convenience, and exposed himself to heavy penalties on default of duty to the public. There is not a particle of proof that the public convenience requires another ferry. It appears that no application had ever been made to the county court for a ferry from plaintiff’s bank. It had been in contemplation and abandoned as a hopeless enterprise.
It is possible that plaintiff on application to the county court might show sufficient reasons, based on public convenience, for granting him the franchise, but not being advised as to the necessity or convenience, it is difficult to say that he is entitled to it.
Still he recovered damages below as if his right was-unquestioned. I think that was error.