Clark County Court v. Warner

• Decision Date: 06 November 1903
• Citation: 76 S.W. 828,116 Ky. 801
• Parties: CLARK COUNTY COURT et al. v. WARNER.
• Court: Kentucky Court of Appeals

76 S.W. 828

116 Ky. 801

CLARK COUNTY COURT et al. v. WARNER.

Court of Appeals of Kentucky.

November 6, 1903

Appeal from Circuit Court, Madison County.

"To be officially reported."

Prohibition on the petition of Anse Warner to restrain the Clark county court from granting a ferry license, and from the judgment the county court and another appeal. Affirmed.

Pendleton & Bush and J. A. Sullivan, for appellants.

Beckner & Jouett, for appellee.

SETTLE J.

The appellee, Anse Warner, on May 6, 1901, entered motion in the Madison county court for a license to operate a ferry across the Kentucky river between the town of Ford, in Clark county and a point where the Stony run and Ford turnpike ends, on the opposite side of the river, and on his land in Madison county. The motion was based upon the statutory notice, a copy of which was duly filed at the time. On the same day and in the same court, a like motion was made for the ferry privilege, at the same place, by one J. C. Richards, who claimed to be the grantee of the Ford Lumber & Manufacturing Company, which owned the land on the Clark county side of the ferry, and this claim was confirmed by J. M. Thomas, the president of the company, by written grant, which he filed in open court. The county court upon the trial of the two motions rejected the application of appellee, and granted the ferry license to Richards. Appellee thereupon took an appeal from the judgment of the Madison county court to the circuit court of that county, and the latter court, on June 29, 1901 upon the hearing of the appeal, rendered judgment reversing the county court, and deciding that the appellee was entitled to the ferry privilege instead of J. C. Richards. So much of the judgment as it is necessary to make a part of this opinion is as follows: "The court being advised, is of the opinion that the Madison county court had no power, under the evidence in this case, to grant a ferry privilege to J C. Richards, but that Anse Warner was and is entitled to the grant of such privilege absolutely, if it should turn out that there is a public highway at the point of landing upon the Clark county side; but, if there is no such public highway upon the Clark county side, the said Warner is entitled to said grant only after the right of way from the point of landing on the Clark county side to a public highway shall have been properly condemned and paid for as required by law." The same judgment continued the cause until the next term of the court for the introduction of evidence on the question as to whether or not the landing on the Clark county side of the river is an established highway, and for such other proceedings as might to the court be deemed proper after the determination of that question. At a subsequent term of the circuit court the appellee filed an amended statement, in which it is averred that the ferry sought to be established lands upon the Clark county side of the Kentucky river at and upon one of the streets of the town of Ford, but that the Ford Lumber & Manufacturing Company is claiming to own the ground upon which the ferry landing will be located in Clark county, for which reason it was made a party to the proceedings, though it is doubtful whether such a step was necessary, as the company had practically made itself a party by appearing in court as the grantor of Richards, and filing the writing confirming his right to the ferry landing on the Clark county side of the river. But a little over a month after the reversal of the judgment of the Madison county court by the circuit court of that county, with full knowledge of the fact that the appellee, instead of Richards, had been granted a license by the circuit court to operate the ferry at Ford, and that the proceeding was still pending in the circuit court, to the end that appellee's right to the ferry landing on the Clark county side of the river might be adjudicated, the Ford Lumber & Manufacturing Company filed notice and moved the Clark county court to grant it a license to establish a ferry at the same point on the Kentucky river. The motion in the Clark county court was resisted by appellee only for the purpose of objecting to the jurisdiction of that court, and to the extent of setting up the pendency of the proceedings in the Madison circuit court, the fact that the ferry sought to be established by the Ford Lumber & Manufacturing Company in Clark county was the same that had been granted appellee by the Madison circuit court, the further fact that the Ford Lumber & Manufacturing Company had been made a party to the proceedings in the Madison circuit court, and in addition that appellee had filed in the Madison circuit court a petition for a writ of prohibition to be directed to the judge of the Clark county court forbidding him to proceed further in the hearing of the application for a ferry privilege made by the Ford Lumber & Manufacturing Company. These objections were all overruled, and a continuance of the case refused by the Clark county court. On the same day a temporary writ of prohibition was granted by the judge of the Madison circuit court, which was duly served on the judge of the Clark county court upon the morning of the following day, after he had resumed the hearing of the motion of the Ford Lumber & Manufacturing Company in his court. Subsequently the appellants Clark county court and J. H. Evans, county judge of Clark county, waived notice, and entered their appearance to the petition and motion for the writ of prohibition, moved to set aside the writ, and filed special and general demurrers to the petition, which motion and demurrers were overruled, and judgment duly entered making the writ of prohibition absolute, and from that judgment this appeal is prosecuted.

It is conceded by the appellants that the ferry privilege sought at the hands of the Clark county court by the Ford Lumber &amp Manufacturing Company is the same as the ferry granted to appellee by the Madison circuit court on the appeal from the Madison county court in the controversy between him and J. C. Richards, and that the Ford Lumber & Manufacturing Company, applicant in the Clark county court for the ferry privilege, had granted to J. C. Richards the right to occupy and use its land on the Clark county side of the river for a landing and passway to the ferry. Appellants do not deny that, if the Clark county court had no jurisdiction of the motion pending there for the ferry privilege to the Ford Lumber & Manufacturing Company, then the judgment appealed from was correct. For the appellee it is insisted that as the Madison county court on the original motion, and the Madison circuit court on appeal, first acquired jurisdiction of the matter of the ferry, no other court could consider the question of establishing this particular ferry until the proceeding then pending in the Madison circuit court had been determined, and especially that this is true in view of the fact that a judgment had been...