Lewis v. Intendant & Town Council of Gainesville , 7 Ala. 85 ( 1844 )

ORMOND, J.

— At common law, a ferry was an incorpora^ ed hereditament, and was consequently capable of alienation^ and would pass to the heir by descent. In this State, the whole matter has been regulated by statute; so that we must therefore look thereto to ascertain what rights appertain to the grantee of a ferry.

The act now in force upon this subject, (Clay’s Dig. 513, § 36,) authorizes the Commissioners’ Court to grant a license to any applicant to establish a ferry, toll bridge, or causey — to establish the rate of toll — to require a bond from the applicants in a sum not exceeding fifteen hundred dollars, in the case of a ferry; to keep good and sufficient boats, hands and the banks of the stream in good repair: in the case of a bridge or cau-sey, that it be well built, and kept in good repair; which bond the Court may at any time, if it deems it necessary, require the applicant to renew, giving him ten days notice, and if he fails to do so, revoke his license. The statute also authorizes an action on the bond at the suit of any one aggrieved.

The 28th section provides, that where two or more persons own lands on the banks where the application is made to es-tabish a ferry, and the owners on each bank apply for a license, the Court may grant a license to either, at their election. The successful applicant paying such damages as may be assessed upon a writ of ad quod damnum. This act was passed in 1836, and was intended as a consolidation of the previous law on the subject with some alterations. The license to establish this ferry was granted in 1S34 — we should therefore consider this question in reference to the former law, where there is any discrepancy between them.

It cannot be denied that the tenure of the grant of a ferry in this State is somewhat doubtful. The use of the term “license,” the requisition of a bond from the licensee, the authority conferred on the Court to require a new bond in its discretion, and the power conferred on it of revoking the license if such new bond is not given, all seem to indicate that the license is a personal privilege. On the other hand, the statute evidently contemplates that the right to establish a ferry shall be secured to the owner of the land on the bank of the stream over which the ferry is to be established. This appears from the 28th section of the last act, but more explicitly from the law which was in force when this ferry was established. [Aik. Dig. 363, § 27.] When the applicant owns the land on one side of the water course only, he has the right to condemn the land on the other side to obtain a landing. But how could' the amount of damages be ascertained if the privilege was to last only during the life of the applicant ? Again, the power to grant licenses for ferries is put by the last act upon the same footing with bridges and causeys; yet it could scarcely have been considered by the Legislature that any one would build or construct a causey upon the uncertain tenure of 'having it. for- the term of their lives only. It is true, that by the act of 1827, (Aik. Dig 364, § 28,) as it respects bridges and causeys, it appears to have been expected that a contract would be. made for a term of years by the Court with the applicant, but that only seems to strengthen the argument, as the same act when treating of ferries, is wholly silent as to the time for which it should be held. It appears, indeed, to have been considered that the owners of the land at the place where the ferry was established, have a right to the license upon the conditions prescribed in the act, and that is the only construction which can be put upon the act — when therefore the land upon which a ferry had been established, descended to the heirs of the licensee, the ferry would pass as an incident of the fee, and for the same reason it might be aliened. Such we believe has been the uniform interpretation of this law in this State, and at this day a very large proportion of all the ferries which have been established are in the hands of heirs and purchasers.

In Ladd v. Chotard, Minor, 366, it was held, that the lessee of a ferry was liable for losses in crossing the river, caused by his neglect, and not the owner of the ferry; and the decision is recognized in Taylor v. Rushing, 2 Stewart, 160; yet this is wholly inconsistent with the idea of its being a personal privilege. The principal objection that the heirs or a purchaser from the grantee would not be liable upon the bond of the licensee, and that the law contemplated that some one should always be bound in a bond for the security of travellers, although certainly entitled to weight, is not insurmountable. The Commissioners’ Court has the power at anytime it thinks proper, to demand a new bond, and this might as well be exacted from the heir, alienee or lessee of the ferry, as from the licensee.

Upon the whole we are of the opinion, that although the act is somewhat obscure; no other conclusion can be attained than that a “ license” to establish a ferry is the grant of an incorporeal hereditament, subject to be revoked by the Commissioners’ Court, if a sufficient bond is not executed within ten days after sucji requisition is made.

In regard to the certificate of the record of the Commissioners’ Court, the Chancellor appears to have considered that because it was a Court of limited jurisdiction, a different rule would prevail as to the effect of the transcript from what would be accorded to a transcript from a Court of general jurisdiction, This is evidently a mistake. As to the time when the Court is to be held, it is precisely on a footing with the Circuit Court, which must commence its sittings at a particular time, and can sit no longer than it is authorized by law to continue in session.

The transcript discloses that the Court of Roads and Revenue had jurisdiction over the subject, and the time when the Court held its session, can no more be inquired of collaterally, than could1 the time when the Circuit Court held its session. When it is shown from the record that the Court had jurisdiction, the presumption arises- that it had power to sit, unless that fact is- controverted in a direct proceeding upon the record. In the case of Cullum v. Casey, 1 Ala. 351, the question came up directly upon error, and we held the decree of the Court void, because there was no authority for the Chancellor to sit when the decree was made; but beyond all question,the decree could not have been impeached collaterally for any cause. Here, as the jurisdiction is shown, the same presumption must arise collaterally as if it were a transcript- of the Circuit Court.

It was not necessary to validate the acts of the Commissioners’Court, that it should have adjourned from day.to day, down to the time of making this order; if it met at the proper time, an,adjournment to any day before the commencement of the next term, would be sufficient, as it is authorized to sit until the business is completed.

From this view it results that the Court erred in the decree made, which is therefore reversed, and the cause remanded for further proceedings.