Gear v. Bullerdick

Mr. Justice Breese delivered the opinion of the Court: This was an action of replevin in the Jo Daviess Circuit Court, brought by the defendant in error against the plaintiff in error, for a horse ferry boat. The facts of the case are briefly these: On the 18th of January, 1840, the general assembly of this State passed an act to authorize H. H. Gear to keep a ferry across the Mississippi river. It is of one section, and provides that H. H. Gear of the county of Jo Daviess be authorized and licensed to keep a ferry across the Mississippi river at and from a point on said river in that county and opposite the mouth of “ Tete de Morí ” in the territory of Iowa, and that he and liis heirs and assigns should have the right of having, maintaining and using a ferry across that river at the place mentioned, and to have and to receive all advantages and emoluments arising from the use of the ferry for the term of ten years, provided that the county commissioners’ court of Jo Daviess shall have the right to assess an annual tax upon the ferry equal to that levied upon other ferries similarly situated in that county. By an amendatory act passed February 8, 1849, the term was extended to thirty years. On or before the 10th of August, 1862, the county authority of Jackson county, Iowa, licensed the plaintiff, now appellee, to operate and run a ferry from Whiteside’s landing, in Jackson county, across the Mississippi river to the State of Illinois, and to carry freight and passengers, cattle and teams, from that landing in Iowa to Jo Daviess county in this State. Under this authority, the plaintiff procured a ferry boat and ran it from Whiteside’s landing to the Illinois shore, at defendant’s landing, and received the usual rates of fare from the Iowa side, and, occasionally, from passengers from the Illinois side. The defendant deeming this an infraction of his franchise, which he claimed to be exclusive for three miles up and down the river, forcibly seized, and took into his possession, the plaintiff’s ferry boat and moved it to Galena and there kept and detained it, refusing to deliver it up on demand made by the plaintiff. Hence the action. Without considering the pleadings or evidence in the cause, or the specific errors assigned, or the instructions, it is only necessary to say, that by the defendant’s charter, he had no right to seize the plaintiff’s boat. Under the general law regulating ferries, by section eleven (Scate’s Comp. 526), a person running a ferry within three miles of an established ferry, without authority, was liable to forfeit his boat to the owner or proprietor of a ferry established under the provisions of that act, or which had been confirmed as such by the tenth section of the act. Ferries growing out of that law, had the rights and privileges granted by it on the proprietor complying with .its provisions, one of which rights and privileges was, “after a forfeiture had occurred, to enter upon and take possession of the boat or craft to his own use.” The legislature did not intend the forfeiture should be declared by the party injured. That must be done by some judicial proceeding, and when done, the proprietor of the established ferry could take possession of the boat. Ho man can be a judge in his own cause. If permitted, violence and bloodshed would be the consequence. Without a forfeiture having been declared by some court of competent jurisdiction, the taking by appellant of this boat was wrongful and tortious. But, we do not conceive, the appellant can resort to this summary remedy as he claims not the franchise under the public law, but by and under the act we have quoted, by which act no power to declare a forfeiture is given to him, nor is any exclusive right for any distance, either up or down the river, bestowed upon him. His- remedies, if he has an exclusive franchise, must he found in the rules of the common law, which are ample and efficacious in his case. But it may be observed further, that if the appellant’s franchise is governed by this public law, then it must be considered that law only intended to reach parties who should, without authority, run and operate a ferry boat across our rivers. How the appellee was not in this predicament. He showed a license from the proper authority in Iowa to establish this ferry, and run his boat from Whiteside’s landing in Iowa to the Illinois shore. This authority is deserving of the same respect and consideration, and is entitled to equal efficacy with the authority granted by this State to the appellant. The middle of the main channel of the Mississippi river being the boundary between this State and Iowa, the authorities of this State had no greater right to grant a franchise to operate and be enjoyed beyond our boundary than Iowa has to grant one to be enjoyed beyond her boundary. . If the appellee, in using his franchise, injures the appellant, or trespasses upon his landing, he has a remedy by action at the common law, but he cannot be the judge in his own case, declare a forfeiture, and seize, and take into his possession the thing he» adjudges to be forfeited. There is an important fact to be established before a forfeiture can be declared, and that.is, has the pretended ferry authority,—is it a legally established ferry ? This question the owner of the rival ferry cannot determine for himself; it must go to the court. He cannot be his own judge, and at the same time the executioner. This is supposed to be a government of law, and all must await its sometimes tardy movements. The verdict passed in this case for the plaintiff, and we think correctly, and affirm the judgment upon the verdict. The appellant has no ground to stand upon, as shown by this record. Judgment affirmed.