Combs v. Hogg

CHIEF JUSTICE LEWIS delivered the opinion, of the court. At the July term, 1891, of the Breathitt County Court, three distinct motions were made for an order granting the privilege of establishing a ferry across North Fork of Kentucky river, from the town of Jackson, on the north, to a point opposite Kentucky Union railroad depot on south side — 181 — thereof, the several applicants being Hogg & Combs, here appellees, Thomas Center, who subsequently abandoned his application, and W. M. Combs, here appellant. At the same term of that court the three motions being heard together, the■ following order was made: “That the application and motion for the ferry privilege by Hogg <& .Combs and by Thomas Center be, and they are each, overruled and refused; and the privilege is granted to W. M. Combs, provided he gets the ferry right on the opposite side of the river from Jackson.” Then follows the rates of toll to be charged as prescribed by the statute. To that order Hogg & Combs, Thomas Center and one G. W. Bowman excepted, and prayed an appeal to the Breathitt Circuit Court, or Breathitt Court of Common Pleas; but only 'Hogg «fe Combs appear to have prosecuted an appeal. At the March term, 1892, of the Breathitt Court of Common Pleas, a statutory court then existing having jurisdiction and in which the appeal under style of Hogg & Combs, appellants v. W. M. Combs, appellee, was pending, the following order wras made: “This cause having been submitted on motion of appellee Combs to dismiss the appeal, and, the court being advised, overrules the motion. Under the statute the county court of Breathitt has the right to establish one or more ferries between the landing south of the Kentucky river and the town of Jackson, on the north side thereof, and, having failed to grant appellants’ ferry privileges, they have a right to an appeal from the order rejecting their application, and it seems that this appeal is seeking a reversal of said order, refusing their application and the appeal lies; but it is not to affect the order granting a ferry to W. M. Combs.” — 182 — At the March term, 1892, of Breathitt County Court the following order was made: “This day W. M. Combs presented a copy of the judgment of the common pleas court, showing that the said Combs was not affected by the appeal to said court. The said Combs then produced and filed the right of way granted to him by agent of the K. U. Land Company, on the south side of the Kentucky river; and Thomas Center appearing in open court, consented that the said Combs ferry right should be established at the present place where Combs is now ferrying, just immediately above the Tanyard branch and within the boundary of the location of said Combs’ privilege heretofore granted him. The condition named in the former order being now fully complied with, said ferry privilege is now permanently granted said Combs, and the privileges granted him conditionally are now made absolute, and the road upon and from the south side of the Kentucky river to Kentucky Union depot is fixed as it now is and this cause is filed away.” But at the March term, 1893, of the Breathitt Circuit Court, the following entry of record appears to have been made: “Defendant W. M. Combs moves to dismiss the. appeal, and submitted.” And, the case having been continued from term to term of that court, at the June term, 1895, thereof, was rendered the judgment now appealed from by W. M. Combs, substantially as follows: That one ferry is sufficient to accommodate the traveling public between Jackson and the Kentucky Union depot; that the order made by the Breathitt County Court at its November term, 1891, in the consolidated motions of W. M. Combs, Thomas Center and Hogg & Combs, be reversed, vacated, and held for naught, both as to granting said privilege to W. M. Combs, — 183 — and as to refusal to grant said Hogg & Combs said ferry privilege; and that the exclusive right of using and operating a ferry across the North Fork of Kentucky river from a point just below the mouth of what is known as the Tanyard branch, on the north side, to a point on the land of Kentucky Union Land Company, on south side of the river, jbe granted to Hogg & Combs. The court then proceeded, after requiring execution by them of the tisual bond in such cases, to fix the rates of toll and conditions of exercise of the privilege granted, all of which, it seems to us, is within the province of the county court. We have referred in detail to various orders made in respect to the ferry privilege in question in order to intelligibly consider and determine a preliminary, and, it may be decisive, question — whether, the lower court had jurisdiction to render the judgment appealed from. Section 6, chapter 42, General Statutes, being same as section 1805, Kentucky Statutes, provides that if the applicant for a ferry privilege owns, or has the right to use the land, proposed as the site of the ferry, only on one side of the stream, and the landing on the opposite side be not an established public highway, the court, before granting the ferry right, shall cause a writ of ad quod dammm to issue, to ascertain the damages the owner of the land on the opposite side wifi sustain by establishing the necessary right of way over his land. If the court does not approve the assessment when returned, a new assessment shall be ordered. But, if it approve the same,, it shall, upon payment into court for the benefit of the owner the amount assessed, condemn such right of way for the public use as a highway. — 184 — Of course the county court may, according to the reason of the statute, make an order granting a ferry privilege upon condition that the applicant procure from the owner of the land on the opposite side, of the stream the right of way by purchase or donation, as was done by W. M. Combs, thus dispensing with the writ of ad quod damnum for if the owner be compensated, or he waives his right thereto, the law is satisfied. Therefore, when W. M. Combs filed in the county court a grant to himself by the Kentucky Union Land Company of the right of way on south side of the river, as he did do at the March term, 1S92, thereof, there was no obstacle in the way of the order which the court then made, granting him the absolute privilege of operating a ferry at the place indicated. For the intended, and, according to fair interpretation, real effect of the order of Breathitt Court of Common Pleas, was to affirm the previous conditional order of the county court. But the statute provides that no ferry shall be granted within a city or town unless those established therein can not properly do all the business, or unless public convenience greatly requires a new ferry at a site not within 400 yards of that of any other; and, as neither of those conditions, exist in this case, the Breathitt Court of Common Pleas, in our opinion, erred in deciding that the privilege might be granted to both W. M. Combs and to Hogg & Combs. The effect of that decision was to prevent or dispense with a consideration and determination on their merits of the conflicting claims of the parties, which seems to have been done in the judgment of the Breathitt Circuit Court now appealed from. Nevertheless, legal rights must in this, as in all other oases, be determined by this court accord — 185 — ing to forms of law and rules of practice prescribed for our guidance. Hogg & Combs did not appeal to either tbe Breathitt Court of Common Pleas or Breathitt Circuit Court from the County Court order of March, 1892, granting unconditionally the ferry privilege to W. M. Combs, nor was that order reversed or affected by the judgment of the Gire nit Court now appealed from, but, in our opinion, is still valid and effectual to give the exclusive privilege to W. M. Combs. It then follows that it was error of the lower court to adjudge either that the order granting the privilege to W. M. Combs is void, or that Hogg & Combs are entitled to grant of a ferry privilege. Wherefore, the judgment is reversed and cause remanded for a new trial consistent with this opinion.