Beckley v. Learn ( 1869 )

Tiiayer, J.

We think that in the enactment of the law of 1854, sec. 40, p. 868, of the Code, the Legislature materially changed the character of ferry licenses as to their term. What before had been a perpetual franchise, and was so held in Cason v. Stone, 1 Oregon, 39, after 1854, became a franchise, limited to a term of five years. Both laws gave to the owner of the lands embracing the ferry landings, at the establishment of a ferry, a preference to a grant of license if he-applied. Under the law before 1854, if he failed to apply, then, he lost his preference forever, since a perpetual franchise had been vested in another. Under the present law, we think he loses his right only during the term of a license granted to another, upon his failure to apply therefor, and that at the expiration of a term of license, he may assert his preference, to the exclusion of every other person, including the former licensee. Our law makes a difference as to manner of application of a holder of a license for its renewal, and that of a new applicant. The latter is compelled to give notice, etc., but a reneival can be obtained without petition, or notice to the owner. Learn was entitled to a renewal óf his license, if found to be a proper person, until Beckley appeared as- an applicant for the license; and when the court found him to be the owner of the land, and a competent person, then Learn’s application should have been denied, and the license given to Beckley.

The judgment should be reversed.