McInnis v. Pace , 78 Miss. 550 ( 1900 )

Terral, J.,

delivered the opinion of the court.

The free bridge over Leaf river, on the Augusta and Hattiesburg public road, became impassable in the spring of 1900 by injuries suffered from high water, when the board of supervisors, in order to provide a crossing over the river until the bridge could be repaired, established a ferry in lieu of said bridge, and authorized its operation by the plaintiff below, the appellant here.

The license to operate the ferry was granted April 30, 1900, and was to continue for five months only. The appellant provided himself with a fiatboat and the necessary and usual equipments of a ferry, at some expense, but located the site of it at a point on the river about one hundred yards below the bridge site, where, for many years before the building of the bridge, a ferry was used for passage over the river. The appellant owned the land on the west side of the river, and obtained, for a consideration, the permission of the owner of the land on the east side of the river to cross and use a landing on that side of the river and to connect it with the public road leading to Augusta.

The defendants, in open disregard of the plaintiff’s rights, set up a ferry across the river a few hundred yards above the bridge site, and operated it for their own use and for the use of such persons as chose to cross there, and from whom they received pay when voluntarily offered. The appellant enjoined the defendants from operating their ferry as a public ferry, and claimed to be remunerated by them for the damages sustained by their misconduct. The injunction was dissolved September 6, 1900, and from that decreo an appeal was taken.

A public ferry cannot be erected and operated in this state without a special license therefor, and such license bestows upon the licensee the exclusive right of such ferry — exclusive as to all persons, except that the board of supervisors may establish as many ferries as the public convenience may require at the same or adjacent places of crossing. Every such licensee, however, is required to give bond with security for the performance of the obligations assumed by him, which impose upon him the duties of keeping a proper and safe boat and equipments, and of his constant attendance at the ferry, and of the due _ and speedy transportation over it of all persons and property desired to be transported, and to secure these and other stringent duties required of him he is placed under heavy liabilities, civil and criminal, for their performance, all of which is necessary for the public convenience; and as a remuneration for his services and liabilities, he is allowed a fixed rate of ferriage. The right secured to the licensee is a legal right, created by public law, and not to be infringed except by the authority of the state itself; and such right would be of no avail unless the party holding it is protected by law in its enjoyment. Indeed, it is' a maxim of law that there is no right without a remedy, for ‘1 whensoever the law giveth any right,5 ’ says Coke, ‘£ it also giveth a remedy. ” Coke on Litt., 56. The ferry right of appellant should have secured to him the tolls lost to him by the infringement of his right by the defendants, and they should make him whole for the damages that he has sustained, to be measured by the amount of tolls diverted.

There seems to be made a claim by the defendants that theirs is a private ferry. The circumstances repel such claim, and, if it be true, it must be supported by proper evidence. If their ferry would have been maintained by the defendants, even if the steel bridge were in repair and fit for use, there is probable room for contention that it was a private ferry, but if it was established in consequence of the bridge being broken, and would not have been used by them if the bridge was passable, then it is but a device to wrong the appellant and it is an infringement of the right secured to him by public authority. The fact that the ferry of appellant is not placed precisely at the broken bridge does not infect with any infirmity his ferry privilege, because of the well-known rule of law that where the public way is for any cause impassable, the public have a right to pass over adjacent lands in order to continue their journey, and to do so as long as the necessity continues.

An injunction against the infringement of a ferry right is a common preventive remedy for such grievance, and was properly granted here, and was erroneously dissolved; but, inasmuch as the right of appellant to operate his ferry éxpired twenty-four days after the injunction was dissolved, it will not be reinstated, as the right to it is now gone by limitation of time. Livingston v. Van Ingen, 9 Johns. R., 535; Young v. Harrison, 6 Ga., 141; C. B. Co. v. Paige, 38 Am. Rep., 414; Somervilles. Wimbish, 7 Gratt., 205; Newtons. Cubett, 104 E. C. L. R., 30; Smith v. Harkins, 3 Ire. Eq., 613; Stark v. McGowen, 1 Nott & McCord, 387; Sullivan v. Board of Supervisors, 58 Miss., 800.

We are of the opinion that the injunction was improperly dissolved, but as the right to it has now passed the decree will not be disturbed, and the case is

Remanded for further proceedings, in accorda/nce with the principles herein am/nouncecl. •