Gant v. Drew. tax at three dollars. There was no treasurer to whom the money could be paid until April, 1852, and it was not paid until September, 1853. Whether a bond was given, or a license issued, does not appear. In April, 1852, Drew again applied, and the year's tax was fixed at twenty-five dollars, which was paid, and a license issued for the ensuing year. The plaintiff, Gant, who owned the land, applied for a license at the same time, and was denied; but in April, 1853, he obtained a license for a year, and paid the tax, but whether he gave a bond does not appear. Drew continued to run his boat until enjoined at the suit of Gant. The cause was heard before Judge Deady, at the September term, 1853, for Umpqua County, when the injunction was dissolved, and the bill dismissed, and the plaintiff appealed. Chapman & Logan, for appellant. Stratton & Harding, for appellee. OLNEY, J. The plaintiff claims the right to keep all ferries established on his land, as incident to, and part of his estate in the soil; that the statute recognises but does not create this right; and that the grant of it to a stranger, when the proprietor was an applicant, was void. Judge M'Lean, in Bowman v. Wathen, 2 McLean, 376, lays down this doctrine in strong terms. In speaking of the owner of land in Indiana, bounded by the Ohio River, he says, "he has the right of fishery, of ferry, and every other right, which is properly appurtenant to the soil; and he holds every one of these rights by as sacred a tenure as he holds the lands from which they emanate." He says, "this right of ferry is a common law right, everywhere recognised in this country, and that the statute was intended to rescue it from violation." If, by the right of ferry, he means the right which, as he says, every man has "to keep ferry-boats for his own convenience upon his own land," the proposition is not only a truism, but was out of place, for the case did not Gant v. Drew. bring in question this right of the private use of one's own soil, by passing over it both by land and water, but the right to keep a public ferry for toll; and this latter was not necessarily in issue, as the case turned upon another point. He certainly speaks of the right to keep public ferries, when he says, "Some of these rights, which appertain to the soil, are of a public nature, and the use of them consequently subjects of legal control. Of this character is the right of ferry." His proposition, therefore, is, that the right to keep a public ferry for toll is part of the proprietor's estate in the soil. This proposition cannot be maintained. There is a toll traverse known to the common law, or rather to the local customs of England, which is paid for the privilege of passing with beasts in certain places, not highways, when there is no right to pass without the proprietor's consent; and if it were not forbidden by our statute, doubtless ferries might be established here on a similar principle, making the toll a matter of contract, until it should grow into a custom. And if a public ferry should be established where there is no highway, the owner would be entitled to compensation for the use of the land, but not for the ferry, which was never his, but which is a thing newly located upon occasion, by act of the government, for the use of the public. The right to keep a public ferry for toll is a franchise, which has no existence in England, until created by the king's license, or other proper authority. If held by prescription, an ancient grant is presumed. (8 Bac. Abr. 114; 1 Black. Com. 37, 38.) It is the same in this country. Chancellor Kent says, that "franchises are certain privileges conferred by grant from the government, and vested in individuals;" and he enumerates among them, "the privilege of making a road, or establishing a ferry, and taking tolls for the use of the same." If they are created by public grant, then they do not emanate from the land. No precedent is cited for the rule laid down in Bowman v. Wathen; nor has any like case or dictum been cited here. On the contrary, in Mills v. The Gant v. Drew. Commissioners, 3 Scammon's Rep. 53, ferries are held not to appertain to the riparian owners. In the Nashville Bridge Co. v. Shelby, 10 Yerger, 280, the owner is held not to be entitled, as a matter of right, to keep the ferry. This right has probably been inferred from some ancient decisions in England, which were carelessly followed at an early day by a few cases in this country, that none but the owners of the soil have a right to use the highways for ferry landings. (Cooper v. Smith, 9 Sergt. & Rawle's Rep. 26.) But the reverse of this doctrine was settled in England by the case of Peter v. Kendall, 6 Barn. & Cress. Rep. 703; and the doctrine of this case has been generally received in this country. Chancellor Kent says, that the right to use the highways for ferry landings, without the consent of the owners of the soil, "is the most reasonable conclusion upon the right to the use of a public highway to which a ferry is connected." A public ferry can seldom, if ever, be required, except where a highway terminates at, or extends across the water. In the present case the ferry is in the public road, where it crosses the Umpqua River; and if the right to keep it for toll is not inherent in the plaintiff, as proprietor of the soil, and the highway may be used for landings without his consent, it follows that defendant's ferry is no violation of the plaintiff's rights as such proprietor. The conclusion at which we have arrived, by the examination and comparison of the few authorities within our reach, is likewise the result of reasoning from first principles. When a road crosses a stream, or body of water, it is not interrupted, but the water, and the soil beneath it, within the limits of the road, are a continuous part of the road; and a bridge or ferry is also a part of the road as much as the embankments, excavations, pavements, causeways, and other artificial improvements for the ease of travel. The owner of the soil, being paid therefor, or having waived compensation, has no interest, except as a citizen at large, in the road as such, including its bridges, ferries and other betterments. If he has the exclusive right Cason v. Stone. to land ferry-boats on the shores, how can he be denied the exclusive right of placing the ends of a bridge upon them; or the exclusive right of being employed for tolls or other reward to make and keep in repair any other work or improvement that may be needed in the road elsewhere upon his land? It might be expedient to favor him with the preference in all these cases; and this the statute does in respect to ferries; but to recognise such a right would be as unreasonable in principle as it is unsupported by authority. Rejecting the plaintiff's claim as proprietor of the soil, we come next to consider whether he has been invested with the franchise by the action of the Board of Commissioners. On this point it is only necessary to say, that the order under which he claims is like that in Cason v. Stone, decided at this term, which we held to be merely void. The plaintiff having no title either at common law, or under the statute, the decree dismissing the bill must be affirmed. FENDAL C. CASON, Complainant, v. EDWIN T. STONE, Defendant. In Chancery. 1. A ferry cannot be established by the county commissioners for a year. An 2. They can only establish permanent ferries, and grant perpetual licenses. THIS cause was commenced in this court, and an injunction was issued in vacation restraining the defendant from keeping a ferry near the ferry of the plaintiff, on the Clackamas River. The defendant has answered, and now moves to dissolve the injunction. The facts are, that one Henderson, owning the land on one side of the river, and wishing to es Cason v. Stone. tablish a ferry, agreed with the plaintiff, who owned the land on the other side, to ferry him and his family free of toll for the privilege of landing on that side. Henderson obtained a license and established the ferry, and sold it with the land to the defendant. Both Henderson and the defendant have at all times performed their contract; but Cason claims that it was limited to two years. At the expiration of that time he obtained a license and established a ferry near the defendant's, and then filed the bill upon which this injunction was allowed. J. K. Kelly, for complainant. A. Campbell, for defendant. OLNEY, J. The Board of Commissioners had power to establish the plaintiff's ferry, if the two were necessary for the public accommodation, and of that necessity they are the final judges. We are, therefore, to inquire whether the plaintiff has a valid license; for if not, the acts of the defendant are not injurious to him. The bill states, and the answer admits, that the commissioners granted to the plaintiff a license to keep a ferry at, &c., for the term of one year. If this order, merely directing a license to issue, and neither preceded nor accompanied by an order establishing the ferry, can, by extreme liberality of construction, be taken to import an establishment of the ferry, still it is an order establishing a temporary ferry for a single year. The statute requires the commissioners, when they deem a ferry necessary, "to establish and confirm the same by an especial order," and then to direct their clerk to issue to the proprietor a license to keep the same. They are also required to fix the rates of toll "from time to time." Such ferries are subject to an annual tax, and when any ferry is not kept as required by the act, they may summon the proprietor and revoke his license. This contem |