Zane v. Zane , 2 Va. 63 ( 1817 )

At a Court held for the county of Ohio in March, 1816, it was ordered, on the application of Jonathan Zane, that a Writ issue, directed to the Sheriff of the county, commanding him to impanel a jury of twelve disinterested Freeholders, to meet on the lands of Jonathan Zane on Saturday, the 16th March, who shall view the place proposed by the said J. Z. for keeping a ferry across the river Ohio, from his lands above and adjoining the town of Wheeling, who should be first sworn, and on their oath should say whether, in their opinion, public convenience will result from the establishment of such ferry, and certify *the same to the Court at its April Term ensuing, in the manner prescribed by Eaw. The Writ accordingly issued, and was executed. The Inquisition stated that it was taken on the lands of Jonathan Zane, lying in the county of Ohio, on the east side of the river Ohio, at the upper end of the borough of Wheeling ; that having examined the place proposed for a ferry, the jury find that a public street of the said town extends to the same on the bank of the river, and are of opinion that the establishment of the ferry will be a public convenience. On the return of Inquisition, the County Court established the ferry, and fixed the rates, from which judgment, Noah Zane appealed to the Superior Court.

That Court adjourned to this the following questions : 1. Whether the application for a ferry ought not to set forth that a public road was laid out across the stream over which application was made to establish a ferry. 2. Whether the application ought not to set forth more distinctly that the applicant owned the land on both, or on one side of the stream. 3. Whether the Act giving power to the County Courts to establish ferries, gave them any power to establish a ferry across a stream which is a boundary of the State.

The Act of Assembly ^(a) by its first section provides, that when any person shall own the lands on both sides of any water-course through which a public road is, or shall be established, and shall desire to keep a ferry across such water-course, he shall apply to the County Court, who shall proceed in the way there pointed out. The 3d section directs similar proceedings where the applicant owns the land on one side only. The 4th section directs, that where the stream, or

' water-course is the dividía g line between two counties, application shall be made to the Courts of the two counties in the manner pointed out. There is no provision made for the case here occurring', viz: the watercourse being the dividing line between this State and another.

The judgment of the Court is as follows :

“The Court is of opinion, that where a person makes application to a County Court to establish a ferry, such person *ought to set forth in his application that he owns the land either on both sides of the water-course over which he seeks to establish the ferry, or on one side of the said water-course ; and that the said application ought to set forth that a public road has been established through the land to the place where the ferry is sought to be established. The Court deems it unnecessary to give any opinion on the question whether, in this Case, it sufficiently appears by the Record, that the applicant does own land on one or both sides of the water-course. And on the third question, the Court is of opinion, and doth decide, that the County Courts have not the power to establish a ferry across a stream bounding the State, by virtue of the Act, intituled, “An Act giving power to the County Court to establish ferries, and to regulate the rates of ferriage.”

(a) 2 Rev. Code of 1808, ch. 105; also 2 Rev. Code of 1819, ch. 238, p. 201.