Chamberlain F. & P. Bridge Co. v. King

• Decision Date: 31 December 1918
• Docket Number: 4450
• Citation: 41 S.D. 246,170 N.W. 145
• Parties: CHAMBERLAIN FERRY AND CABLE PONTOON BRIDGE COMPANY, Plaintiff and Respondent, v. M. J. KING and M. K. KING, Defendants and appellants.
• Court: South Dakota Supreme Court

41 S.D. 246

170 N.W. 145

CHAMBERLAIN FERRY AND CABLE PONTOON BRIDGE COMPANY, Plaintiff and Respondent, v. M. J. KING and M. K. KING,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Brule County, SD

Hon. William Williamson, Acting Judge

#4450--Affirmed

Bartine & Bartine

Attorneys for Appellants.

Brown & Brown

Attorneys for Respondents.

Opinion filed December 31, 1918

POLLEY, J.

Plaintiff is a corporation organized for the purpose of operating a ferryboat across the Missouri river at Chamberlain. During the year 1917, it secured a license purporting to grant it the exclusive right to operate a ferry from the foot of a certain designated street in Chamberlain to a point on the opposite side of the river, and thereafter proceeded to install and operate a ferryboat at such place. About the month of July, 1918, defendant, without the consent of plaintiff and, as claimed by plaintiff, in violation of the rights and privileges granted to it by the said license, commenced the operation of a ferryboat across the Missouri river at the place designated in plaintiff's license. Plaintiff thereupon commenced this action and applied to the court for a temporary injunction restraining and enjoining the defendant from the operation of the said ferry during the pendency of this action. The order was granted as prayed for by plaintiff, and, from said order, defendants appeal.

Section 1778, Pol. Code, as amended by chapter 143, L. 1903, provides that:

"It shall be unlawful for any person to establish, maintain or operate upon any waters within this state any ferry, upon which to convey, carry or transport any persons or property, for hire or reward, without first having procured a ferry lease therefor, as hereinafter provided. ... 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."

And said section further provides that any person violating any of the provisions of said act shall, for each offense, forfeit and pay to the proper county, city, town, or village not less than $10 nor more than $100. And section 1779, Pol. Code, as amended by chapter 143, L. 1903, makes it the duty of the board of county commissioners or the mayor and city council or trustees of any incorporated city, town, or village to grant a ferry lease, upon proper application therefor, for a term of not exceeding 15 years. Section 1785, P. C., as amended by chapter 143, L. 1903. reads as follows:

"Nothing in this chapter shall prevent any person or persons from ferrying persons or property across any stream in this state in time of high water."

It is made to appear from certain affidavits filed on behalf of appellants that, at the time they commenced the operation of their ferry, the water in the Missouri river was "high," and that, under the provisions of section 1785, it was lawful for them to operate said ferry, notwithstanding the fact that respondent had a license purporting to grant it the exclusive right to operate a ferry at that place. In other words, appellants contend that ...