Challiss v. Davis

• Decision Date: 28 February 1874
• Citation: 56 Mo. 25
• Parties: LUTHER C. CHALLISS, Plaintiff in Error, v. OLIVER DAVIS, Defendant in Error.
• Court: Missouri Supreme Court

56 Mo. 25

LUTHER C. CHALLISS, Plaintiff in Error,

v.OLIVER DAVIS, Defendant in Error.

Supreme Court of Missouri.

February Term, 1874.

Error to Buchanan Circuit Court.

Ben F. Loan, and Vineyard & Young, for Plaintiff in Error.

A. H. Vories, for Defendant in Error.

SHERWOOD, Judge, delivered the opinion of the court.

This was a proceeding on the part of Challiss to enjoin Davis from infringing upon the privileges and franchises granted to those under whom Challiss claimed by virtue of “An Act to incorporate a ferry in the county of Buchanan,” Approved November 17th, 1855. Section 6, of that Act confers “upon the said Million, Burnes & Brothers, the exclusive right to establish a ferry within two miles of said town of Atchison, Kansas Territory, on the North or Missouri side of said river.” And the first section grants to the parties therein named, their heirs or assigns, the right and authority for the space of twenty years from a given date, to keep a public ferry across the Missouri river opposite the town of Atchison, and to have a landing on the north side of said river, upon the land of George M. Million. The petition alleged a compliance with the terms and conditions of the Act of incorporation, and claimed, in consequence of such compliance, that the petitioner was entitled to and had the exclusive right to all the tolls, receipts, profits, &c., belonging to his ferry, for two miles above and two miles below said ferry.

The acts of infringement with which the defendant was charged were in substance; that he had placed a ferry boat at plaintiff's landing and within the space to which plaintiff had the exclusive right, and had been and still was doing the business of a ferryman, crossing and ferrying a great many persons, cords of wood, posts and lumber, etc., the ferriage of which at ordinary rates would annually amount to several thousand dollars; that the damages which were being done by the defendant, and which he threatened still to continue to do, would be irreparable unless he was restrained, &c. The petition concludes with a prayer that defendant may “be enjoined and prohibited from using a ferry boat for any and all purposes, within two miles of the plaintiff's ferry landing in Buchanan county, Missouri, opposite the town of Atchison, in the State of Kansas,” and for further relief. The defendant successfully demurred to this petition, alleging, among other grounds, that the same did not state any cause for granting the relief prayed for, and...