Greer v. Haugabook

McCay, Judge. 1. It would be making rather than expounding law, to say that the Legislature, in section 721 of the Code, where it provides that no private ferry shall be established within three miles of a “ public bridge,” means within “ three miles of a public bridge or ferry.” It is enough to say, that the word “ ferry ” is not there, and that if the Legislature intended to include ferries, it is only a fair presumption to suppose they would have said so. We can see good reasons, too, why the word is left out. A bridge is a costly thing, and men might well be unwilling to go to the expense of building a bridge, if they were liable to have a ferry set up close by them. This reason would be less strong in the case of a ferry, as the expense of the ferry is less than a bridge, and the cost of the former is rather in the expense of running it, than of establishing it at first. The other question in this case is one of more difficulty, and one that has given us much trouble. 2. Section 721 of the Code, standing alone, would seem to allow any owner of the land on both sides of a stream to establish and use a ferry thereon at his discretion, and such was the Act of 1850, of which this section is a codification. 3. But section 2207 expressly says that a public ferry is a franchise, and that the owner of the land does not have the right to establish a public ferry. At first reading, these two [286] sections would seem to conflict, and perhaps they do. They occur in different divisions of the Code, one under the head of “ Organization of the State and Counties,” and the other under the head of “ Eminent Domain.” As is well known, the Code is the result of the labors of different men, and each of these general subjects were intrusted to different persons. Perhaps, in their consultations, they overlooked this discrepancy. At any rate, it exists, and it is our duty, if we can, to give them both effect. The solution which occurs to us, is the distinction between a private and a public ferry. A man may have a flat on a stream, and may use it to carry over his own people, wagons, etc., and he may occasionally take over a neighbor and take pay for it, yet it is not, necessarily, a public ferry, because he does not make it a constant, regular business. There is the same distinction between a carrier and a common carrier, between one Avho may, on occasions, hire out his horse, and a livery man, or one who may, at times, take pay for a meal or bed from a traveler, and an inn-keeper. Perhaps this, then, is the true meaning of these statutes, taken together. A public ferry is open to all. Regular fare is established. The ferryman is a common carrier. He is bound to take over all Avho eome, and he is bound to keep up, and in good order, his ferry, and he is held to strict liability. Such a right exists, not as appurtenant to his land, but is a franchise which needs the grant of the proper public authority. A private ferry is mainly for the use of the owner, and though he may take pay for ferriage, he does not folloAV it as a business. His ferry is not open to the public, at its demand. He may, or may not, keep it going, etc. We admit that these Avords in section 724 and the adjoining sections are difficult to reconcile with this distinction, but, in the main, AAre think this distinction will harmonize the provisions of the Code, taken altogether. 4. A franchise of a ferry is not exactly a corporation, though it has some of the incidents of one. It is rather an incorporeal right, lying in grant. It is the subject of sale, and of inheritance. Without question, a ferry franchise may [287] be lost by non-user; but, under our Code, this only dates from the judgment of a Court declaring the forfeiture; such-is the express language of the Code, and we see nothing in the facts of this case to prevent the application of the rule to it. Judgment affirmed.