Tuscaloosa County v. Foster

McCLELLAN, C. J. — Section 26 of Art. I, constitution of 1868, ordains: “That all navigable waters shall remain forever public highways, free to- the citizens of the State, and of the United States,, without tax, impost or toll imposed; and that no tax, toll, impost or wharf-age shall be demanded or received from the owner of any merchandise or commodity, for the use of the shores, or any wharf erected on the shores, or in or over the waters of any navigable stream, unless the same be expressly authorized by the general assembly.” This ordinance is section 25, Art. I. of the present constitution. By act of assembly, approved December 8th, 1868, “To — 399 — carry into effect Paragraph. 26, Article I, of the Constitution of Alabama,” it was provided: “That riparian owners upon the navigable and other waters of this State, who maintain in good order, for public convenience, erections and ferries upon the banks or shores of said waters, shall be entitled to charge usual and reasonable rates for the use thereof, or such rates as are prescribed in the several acts heretofore passed authorizing such erections or ferries, or agreed on by said owners with the corporate authorities of any city or town or county in which they are situated; provided, No erection or structure, or ferry of any kind, shall be permitted to injuriously affect the rights of navigation in said waters.” This statute is embodied in the Code of 1896 as section 2514, and there constitutes a part of article 3, chapter 59, which deals with bridges, causeways and ferries, and provides a system of licensing ferries. Section 2503, so far as pertinent to the present case, is as follows: “On application for ferries, where the banks on each side belong to the same person, he is entitled to prior right of establishing a ferry; when the banks belong to different persons, the court may grant the licence at its election, to either of such owners making the application; but should any person not the owner of the land on either bank of the river where it is proposed to establish a ferry, make application for a license, he shall be inquired to produce before the court a statement in writing from the owner thereof, saying that he is not an applicant for such license. * * * Such license for ferry shall be granted only at the crossing of a river a.t a point where a public road has been established.” Section 2500 of the Code requires that all licensees shall enter into bond with surety, to be approved by the judge of probate, in a sum not exceeding $2,000, 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. Section 2501 authorizes the commissioners’ court to fix rates of ferriage, and section 2509 prescribes a penalty for excessive charges. Section 2506 provides: “No- licensed ferry must be established on the same water — 400 — course within two miles of any other’, unless within that distance of some town or city containing not less than five hundred inhabitants.” Section 5553 of the (criminal) Code provides: “Any person who keeps any ferry * * for ferriage or toll, without license, must, on conviction, be fined not less than twenty, nor more than one hundred dollars,” etc., etc.; and section 5558 declares that “any keeper of a public ferry * * * who demands or receives from any person a higher rate of toll than is prescribed by the court of county commissioners, is guilty of a misdemeanor.” All these sections, 2500, 2501,' 2503, 2508, 2509, 2514, 5553, and 5556 — relate to the same subject matter, are severally integral parts of the statutory system for the establishment, maintenance and regulation of ferries, and must be considered and construed together, their provisions made to harmonize and each be accorded, a field of operation if practicable. So reading and interpreting them, it is in the first place clear that all ferries crossing a stream with a public road must be licensed; the owner must give the bond required by section 2500; his rates of charge are prescribed by the commissioners’ court under section 2501; he is subject to the penalty presci’ibed by section 2509, and to the punishment prescribed by section 5556 for overcharging, and he is guilty of a misdemeanor and punishable as prescribed by section 5553 if he keeps a ferry without a license. And all this though he may be a riparian owner — the owner of the bank or shore upon both sides of the stream — at the point where the public road crosses the water course, within the meaning of section 2514. This construction leaves an ample field for the operation of that section. No ferry can be established or licensed under the other sections except it be at a public road crossing. Under section 2514 the riparian owners may maintain as many ferries as they please along the stream elsewhere than at the intersection of the stream and a public road, without giving bond, without a license, without regulation of rates, at least so long as they charge usual and customary rates, by the commissioners’ court, and without violating or being amenable to the penalties or punishments pre — 401 — scribed by sections 2509, 5553, and 5556, those sections and indeed all the provisions of article 3, Ch. 59 of the Code outside of section 2514 having reference only to licensed ferries. And this section 2514 has yet another field of operation in that it confers upon the riparian owner' of the banks of a stream at a point where it is bisected by a public road a priority of right to a license to maintain a ferry upon the commissioners’ court determining to establish a ferry at that 'point provided he executes the statutory bond. But it is discretionary with the court to establish a ferry at any such place or not. Navigable streams as defined in our law — streams of sufficient width and depth for valuable floatage — are often not too deep at ordinary stage to be fordable, so that in many cases the public interests would be best subserved by leaving them free to the passage of the people; and whether this is true of a particular' stream at a particular' crossing the court must decide. If it so determines the riparian owner can no more interpose any legal objection to its action than a stranger. It is only Avlien tiie court determines that a ferry is necessary, and resolves upon licensing the keeping and maintenance of a ferry at such a place that the preferential right of the riparian owner to a license to operate such ferry comes into existence at all; and even then, we apprehend, his right is a, qualified not an absolute one, des-ponding upon a consideration of all the circumstances by the court looking to the attainment of the greatest public good at the least private injury.—Cox v. Easter, 1 Port. 130. And when a ferry has been established and the riparian owner has been licensed to maintain and keep it, he has no legal footing to insist that it shall be maintained and he be licensed indefinitely; but, to the contrary, the commissioners may, certainly at the end of a license period, disestablish and discontinue the ferry. And so, of course, the commissioners after determining upon the establishment of a ferry, or the continuance of one already established may fix the term of license at their discretion for any period not exceeding ten years, so that if they have resolved upon building a bridge, for instance, they may issue a license for the — 402 — ¡time necessary to that end only, or having need of the banks at the point of the ferry-crossing for the erection of •a bridge, they ma,y discontinue the ferry at once and decline to issue any license. So it is that notwithstanding the provisions of section 2514, and the qualified preferential right of the riparian owner under thean, it is manifest 'that until he has received a license lie has no more of right or of privilege or of franchise to maintain a ferry at the bisection of a public road and a navigable stream than a stranger would have; and he, as would, ‘the stranger, and to the same extent as the stranger, would violate the criminal statute to'which we have referred if he attempted to keep such ferry without a license. Applying the foregoing conclusions of law to the case in hand (a statement of which we leave to the reporter) the conclusion of fact must be that if the defendant made the representations with which the complaint charges him as to his having the exclusive right, franchise or privilege to maintain and operate a ferry at the intersection of the Warrior river and the public road between Tuscaloosa and Eutaw, the fact being-shown beyond controversy that he had no license and had given no bond, such representations were false, unless a ferry franchise may be acquired by prescription, and it be a fact that he had a prescriptive right in the preanises. Upon the issue made by special plea as to .the existence of a right in him by prescription the evidence, to say -the least for plaintiff, -was conflicting; so that the giving of the affirmative charge for the defendant cannot be referable to and justified upon that issue. Recurring to the issue made by a denial of the allegations of the complaint — the general issue — and looking to the evidence shown by the bill of exceptions, which purports to set out all the evidence, we find that there was evidence before the jury tending to establish that the defendant made the representations as laid in one or more of the counts of the complaint, that plaintiff relied upon them and paid $2,500 because of and induced by them, and that they were false. If the representations were as to a matter of fact,- -it is immaterial — 403 — whether the defendant knew them to be false or not. If they constituted the expressions of opinion merely on the part of the defendant they would not support the action unless they were knowingly false, were made with intent to deceive and were accepted and acted upon as true. If doubtful in any case whether the statements are as to facts as distinguished from expressions of opinion, the question should be for the jury; and when the statements are of opinions merely, it is of course for the jury to determine whether they are consciously false, intended to deceive, etc., etc. On no aspect of the case could tire affirmative charge for defendant have properly been given. . Whether a franchise to maintain a ferry may be acquired by prescription need not be decided in this case. The question appears to have been decided both ways in our earlier reports. The writer is inclined to think that such franchise cannot be so acquired. If it may, however, the fact may come in under the general issue in this case. No special plea was necessary. .Reversed and remanded.