Levisay v. Delp

Freeman, J.,

delivered the opinion of the court.

This bill was filed to enjoin defendants from carrying on a ferry on Clinch river, to the injury of complainant’s ferry, which was licensed by the county court of Hancock county in 1873, and' had been kept up by him from that time.

The . proof shows complainant owns an undivided interest in the land on the north side of the river. Defendants, in January, 1876, had bought a small portion of the land including the landing, on the south side, and soon after commenced to run their ferry boat, both parties using the same landings. It will be seen, that this is not a contest between two rival claimants for a license to establish a ferry, as in most of the cases reported in our books. Complainant has his license, and by virtue of it enjoys the ferry franchise. His complaint is, that another party is engaged in running a ferry boat at the same place from the opposite side of the river, and his eontention is, that the court shall stop this by injunction.

We do not say that there may not be cases where a court of chancery would intervene to protect the rights of a party, for an “injunction may be granted,” says Mr. Story, (Eq. Jur., vol. 2, Perry Ed., sec. 927), “ in favor of parties possessing a statute privilege or franchise, to secure the enjoyment of it from invasion by other parties. The right would have to be clear and exclusive in such cases, and in England, established, if disputed, by a verdict, before a perpetual injunction would be decreed.”

In our State, the ferry franchise is deemed one of public interest, standing on the same footing as a public road, and • the land of a party may on this principle be appropriated to the use of a public ferry, as an assessment for the use of the public. See 3 Yer., 390.

The county court, by sec. 4206 of the Code, is given the general supervision over roads and ferries, to establish and regulate the same. By sec. 1241, the oiuner of both banks of the river is entitled to have a ferry upon application to the county court. By sec. 1242, where the banks are owned by different persons, each owner is entitled to keep a ferry; and each is entitled to transport persons across the river and land them on the opposite bank, by the next section of the Code. The county court must authorize the ferry in each case, however, and is required to take a bond for faithful performance of the duties imposed by law. See sec. 1248.

The result of this is, that while complainant is entitled under his license, while .it is unrevoked,• to run his ferry, as against the other party he has no exclusive rights which a court of equity ought to enforce, any more than a licensed merchant would have as against an unlicensed dealer, who might sit down and commence business by his side. The latter would violate the law by thus engaging in the business without license, but would not be answerable to the other party for such violation in a court of chancery. It would be an idle exercise of the injunctive power by the court to restrain him in this case, when as owner of one bank of the river, he may apply to the county court and obtain a license or order establishing his ferry, thus legalizing it, at next, term of that court.

It is perhaps proper to refer to the question made by counsel, that the record of the county court, is not evidence in this case, because not made so by bill of exceptions. The cases referred to by counsel have no bearing on this case — they were at law. In this, the record duly certified, was regularly filed as evidence in the case, and became evidence, as much as a deposition or any other testimony.

On the whole case, the chancellor’s decree dismissing the bill is correct, and we affirm it with costs.