Larson v. State

• Decision Date: 14 November 1927
• Docket Number: 6289
• Citation: 51 S.D. 561,215 N.W. 880
• Parties: CAPTAIN JOHN LARSON, Plaintiff, v. STATE OF SOUTH DAKOTA, Defendant.
• Court: South Dakota Supreme Court

51 S.D. 561

215 N.W. 880

CAPTAIN JOHN LARSON, Plaintiff,

v.

STATE OF SOUTH DAKOTA, Defendant. South Dakota Supreme Court Original Proceedings File No. 6289—Demurrer sustained. W. M. Potts, Mobridge, SD Sutherland, Payne & Linstad, Pierre, SD Attorneys for Plaintiff. Buell F. Jones, Attorney General E. D. Roberts, Ray F. Drewry, Assistant Attorneys General, Pierre, SD Attorneys for the State. Opinion filed November 14, 1927

GATES, J.

By this action plaintiff seeks to recover from the state the sum of $44,000 damages by reason of the destruction of his ferry franchises on the Missouri river. The complaint alleges the granting to plaintiff of a ferry franchise by the county commissioners of Walworth county at a point on the easterly bank of said river near the city of Mobridge, and the granting to him of a similar franchise opposite that point on the westerly bank of said river by the county commissioners of Corson county; that such franchises were exclusive for the distance of two miles above and below said points; that the state during the years 1923 and 1924, pursuant to acts of the Legislature, constructed a steel and concrete bridge across said river within the confines of plaintiff’s exclusive area; and that by reason thereof his ferry business has been destroyed, and his said franchises have become worthless. Other allegations of the complaint need not be mentioned. Among other grounds, the state has demurred to the complaint for that it does not state facts sufficient to constitute a cause of action.

Putting to one side all of the other points made, the demurrer must be sustained upon the ground that the erection of said bridge by the state was not a violation of the franchise rights granted plaintiff.

Section 8697, Rev. Code 1919, authorizes the board of county commissioners (in certain cases, the governing body of a city or town) to grant a ferry lease for a term not exceeding 15 years to the highest bidder. Section 8696 makes it unlawful for one to operate a ferry without first having procured a ferry lease, and provides:

“And when any ferry lease has been granted, no other lease shall be granted within a distance of two miles from the place described, in the application for a ferry lease, as the ferry landing.”

In support of his contentions plaintiff asserts that his lease was an exclusive franchise to transport persons and property across the Missouri river within the 4-mile limit on both sides of the river and that the erection of the bridge was an impairment of the obligation of his contract. Const. U. S. art. 1, § 10; Const. SD art. 6, § 12.

All that is contemplated by the statute and all that was granted by the plaintiff’s leases was the right to operate a ferry together with a prohibition upon the granting boards from granting other ferry leases within the granted area during the period. While in Nixon v. Reid, 67 N.W. 57, 32 LRA 315, the granted right was referred to as an exclusive license, and in Chamberlain F. & C. P. Bridge Co. v. King, 170 N.W. 145, the granted franchise was referred to as an exclusive franchise, yet no more was expressed, or intended to be expressed, thereby than...