Owens Bros. v. Lockwood , 1885 Ky. LEXIS 66 ( 1885 )

■JUDGE LEWIS

DELIVERED THE OPINION OF THE OOURT.

This is an action by appellants to recover for an :alleged disturbance of their ferry privilege by appellee. And the only question before this court arises on the general demurrer to the petition and .amended petition, which was sustained.

It is stated in the petition that appellants, as partners, are the owners of the ferry privilege and the right to transport passengers and things across the ■Ohio river, from Paducah, Kentucky, to' the Illinois .shore, and to collect tolls therefor, as stated in the lease of the city of Paducah of said ferry privilege to Y. Owen in his life-time, to the exclusion of every •other person, which lease was made in 1870 for the term of twenty years ; that said Owens, in compliance with the terms of the lease, fitted up and furnished a substantial ferry-boat, and also procured the ferry privilege from the Illinois shore, and operated the ferry up to his death,, after which event- appellants, by purchase, acquired his ferry privilege, and have since operated the ferry.

They state further, that appellee has occupied a landing just above their ferry landing at the wharf in Paducah, and kept a great number of skiffs, which he has hired and continues to hire to persons desiring to cross the Ohio river, at the price -of twenty-five cents for each skiff, and that one :skiff' will carry from five to ten persons, which makes the price of transportation greatly less than ■appellants can carry passengers at their rates; by which acts of appellee they say their ferry privilege has been unlawfully disturbed, and they have been damaged.

A fatal objection to the petition is, that it does not contain an allegation that the city of Paducah <ever acquired or had the exclusive ferry privilege now claimed by appellants. For, though it is not in terms stated that the city of Paducah did in fact-lease the privilege to Y. Owens, we are not authorized by the language of the petition to infer that he' had or claimed any other right or interest than as-mere lessee. And, of course, the interest appellants acquired by their purchase can be no other or greater' than that of sub-lessees. To recover in this action, it is therefore indispensable for them to allege and show that the city of Paducah is the owner of the-franchise.

Moreover, the lease referred to is not made part of' the petition, nor can it be assumed, from any statement contained in it, that appellants in virtue of' their purchase alone, and without the consent of the lessor, succeeded to all the rights of the original lessee.

The only statement in the amended petition not in the original, is that appellants’ ferry is an established ferry. But it is not alleged how or by what authority it has been established. And even if the allegation amounted to more than a mere conclusion of law, it would not be equivalent to the necessary statement that the city of Paducah is invested with title to the, franchise, or had the right to lease it to Y. Owens.

Judgment affirmed.