Collins v. Ewing

B. F. SAFFOLD, J. The appellant, claiming a ferry on the Coosa river, under a license from the commissioners’ court of St. Clair county, obtained an injunction against one set up in opposition, or interference, by the appellee. On the hearing of the cause, the chancellor dismissed his bill, on the ground of invalidity of his license. The court held the order of the commissioners’ court granting the license void, because it failed to show that the complainant was the owner of one or both banks of the Coosa river, or that the prior right of such owner to a license had been divested. The court of county commissioners is invested with authority to establish toll-bridges, causeways, and ferries, within their respective jurisdictions; and to license any person to establish them. R. C. §§ 1381,1383. When a ferry is sought to be established by any person, he is to be required to give bond with security, to be approved by the probate judge, in not more than two thousand dollars, payable to the county, and conditioned to' keep safe and convenient boats, with a sufficient number of ferrymen, and to keep the banks on each side of the water-course in good repair. R. C. § 1383. “ On application for ferries, when the banks on each side belong to the same person, he is entitled to the prior right of establishing a ferry; when the banks belong to different persons, the court may grant the license, at its election, to either of such owners making the application.” R. C. § 1386. The manifest construction of this last section is, that of all who at any time apply for the privilege of establishing a ferry at a particular place, the preference must be first given to him who owns the land on both sides of the stream, if there be such an applicant. If the land is not so owned, then to such one of the applicants who own the land on one side, as the court may elect. If there be none such, then to some other person, who must pay to owner of any land appropriated for a public ferry such damages as may be assessed on his application to the court after the license is granted, under R. C. § 1387. If the owner of the ferry does not pay the damages assessed within thirty days after notice, the court, on application of the owner of the land, must revoke the license. R. C. § 1387. Ownership of the land confers no right to the franchise, except the preference bestowed above, upon the timely application of the owner. [103] When the privilege is granted to any applicant, whether he owns the land or not, it cannot be recalled in favor of any other. State v. Commissioners’ Court of Talladega, 3 Port. 412. The complainant made written application to the commissioners court of St. Clair county, in which he stated that he had, about ten years before, obtained a charter from the said court for a ferry on Coosa river, on section 33, township 17, range 4 east, in St. Clair county, and had established it; that the term was about to expire, and that he owned the lands in fee upon which the said ferry was established; and prayed for a license to keep a ferry at the same place. The court granted the license, and he executed a proper bond. The law indicates that an application should be made ; but it does not specify what it shall contain, or whether it shall be in writing, or be sworn to. It seems to be sufficient if the license is granted by the proper court over some place within its local jurisdiction, and a proper bond is filed. When once obtained, it cannot be collaterally assailed for fraud. Harrell & Croft v. Ellsworth, 17 Ala. 576. The court erred in treating the license of the complainant as invalid. We think he is entitled to a perpetual injunction; but, out of caution, we will not render such a decree in this court. The decree is reversed, and the cause remanded.