Evans v. Kroutinger

• Decision Date: 06 June 1903
• Citation: 9 Idaho 153,72 P. 882
• Parties: EVANS v. KROUTINGER
• Court: Idaho Supreme Court

72 P. 882

9 Idaho 153

EVANS v. KROUTINGER

Supreme Court of Idaho

June 6, 1903

FERRY FRANCHISE-VOLUNTARY TRANSFER-BY WHOM AUTHORITY CAN BE QUESTIONED-ISSUES OF WIFE'S SEPARATE PROPERTY.

1. A ferry franchise may be voluntarily transferred the same as any other incorporeal hereditament.

2. The franchise granting power retains the same control over the franchise in the hands of the assignee as it does while it is still exercised by the original grantee.

3. The franchise granting power alone can question the right of the assignee of such franchise to exercise its rights and privileges.

4. Under section 4479, Revised Statutes, the issue and profit arising from the investment of the separate property of the wife is not liable upon execution against her husband.

(Syllabus by the court.)

APPEAL from District Court, Nez Perce County. Honorable Ben. F Tweedy, Judge pro tem.

Action by W. M. Evans to perpetually enjoin the sale of a ferry franchise and boats, cables, etc., by A. W. Kroutinger sheriff, under execution. Judgment for plaintiff. Defendants appeal from the judgment. Affirmed.

Affirmed. Costs awarded to respondent.

I. N Smith, for Appellants.

A ferry franchise is not the subject of voluntary transfer. No authority from the board of commissioners is shown to have existed for the pretended sale of this franchise by Agatha E. Evans and J. H. Evans to W. M. Evans. The board of commissioners has never ratified the sale and no act is shown of any pretended ratification at or prior to the rendition of the judgment. (See Brunswick Gas Light Co. v. United States Fuel etc. Co., 85 Me. 532, 35 Am. St. Rep. 385, 34 A. 416; Nixon v. Reid, 8 S. Dak. 507, 67 N.W. 57, 32 L. R. A. 315; Snouffer v. Cedar Rapids Ry. Co., 118 Iowa 287, 92 N.W. 79; Oregon R. & N. v. Oregonian Ry. Co., 130 U.S. 1, 9 S.Ct. 409, 32 L.Ed. 837; Central Transfer Co. v. Pullman P. C. Co., 139 U.S. 24, 11 S.Ct. 478, 35 L.Ed. 55.) Equity will not enforce contracts for transfer of same. (Chicago Gas Light Co. v. People's Gas Light Co., 121 Ill. 530, 2 Am. St. Rep. 124, 13 N.E. 169.) The true remedy of a party injured by such contract is to disaffirm, and sue on quantum meruit. (Pittsburg R. R. v. Keokuk, 131 U.S. 371, 9 S.Ct. 770, 33 L.Ed. 157; Pennsylvania Ry. v. St. Louis Ry., 118 U.S. 290, 6 S.Ct. 1094, 30 L.Ed. 83.) A married woman not a sole trader cannot acquire property which requires her to engage in business. The statutes of Idaho require the owners of ferry franchises to file a bond for the performance of their duties and to perform duties to the public. The public interests would preclude persons incapable of contracting from acquiring such interests because coverture, infancy, lack of capacity are always grounds of defense to the enforcement of contract. A married woman's right of contract is merged in her husband. (Dernham v. Rowley, 4 Idaho 753, 44 P. 643.) She cannot engage in business unless she is declared a sole trader. (McDonald v. Rozen, 8 Idaho 352, 69 P. 125.) Inasmuch, therefore, as the grant of a ferry franchise is upon the theory that the person to whom it is granted must enjoy it, it could not be granted to a married woman. The grant of a ferry franchise is a contract protected by the federal constitution; such grant results in a contract between a grantee and the state. (See Mills v. St. Clair County, 2 Gilm. 197; Dufour v. Stacey, 90 Ky. 288, 29 Am. St. Rep. 374, 14 S.W. 48; McRoberts v. Washburn, 10 Minn. 23; Benson v. New York, 10 Barb. 223.) A married woman cannot acquire real estate by purchase except after she has been declared a sole trader, so as to make such property her separate estate. (Alverson v. Jones, 10 Cal. 9, 70 Am. Dec. 689; Adams v. Knowlton, 22 Cal. 284.)

Forney & Moore and Charles L. McDonald, for Respondent.

The right of the grantee of a ferry franchise to assign the same is confirmed by statute. (Idaho Rev. Stats., sec. 1125.) In England ferry franchises have always been transferable from the original grantee, either by conveyance, lease or descent, independent of the statute. (12 Am. & Eng. Ency. of Law, 2d ed., p. 1098.) And such also, by the weight of authority, is the rule in the United States. (Bourman v. Wathen, 2 McLean, 376, 3 F. Cas. No. 1740; Rohn et al. v. Harris et al., 130 Ill. 525, 22 N.E. 587; Montgomery v. Multnomah Ry. Co., 11 Or. 344, 3 P. 435; Francis B. Fay et al., Petitioners, etc., 15 Pick. 143; Dufour v. Stacey, 29 Am. St. Rep. 374, and cases cited; Jeffersonville v. Louisville etc. Ferry Co., 27 Ind. 100, 89 Am. Dec. 495; Michigan Telephone Co. v. St. Joseph, 121 Mich. 502, 80 Am. St. Rep. 520, 80 N.W. 383, 40 L. R. A. 87; Patrick v. Ruffners, 2 Rob. (Va.) 209, 40 Am. Dec. 740; Oakland R. R. Co. v. Oakland etc. R. R. Co., 45 Cal. 365, 13 Am. Rep. 181.)

AILSHIE, J. Sullivan, C. J., and Stockslager, J., concur.

OPINION

The facts are stated in the opinion

AILSHIE, J.--

This suit was commenced on September 4, 1902, by the plaintiff, W M. Evans, filing his complaint praying a perpetual injunction against the defendants, A. W. Kroutinger, as sheriff of Nez Perce county, and Geo. H. Kester and W. F. Kettenbach, as judgment creditors, enjoining the sale of certain property upon execution. Defendant answered and the cause went to trial before Honorable Ben. F. Tweedy, judge pro tem, and resulted in a judgment in favor of plaintiff perpetually enjoining said sale. Defendants appealed from the judgment.

The facts appear as follows: J. H. Evans, a white man, and Agatha E. Evans, an Indian woman of the Nez Perce tribe, are husband and wife, and have been such ever since 1884. In 1894 Agatha E. Evans established a ferry across Clearwater river in Nez Perce county at a point called "Evans Ferry," without obtaining therefor any authority or franchise save the "permission" of the Indian agent then in charge of said reservation.

The trial court finds that the boat, cables, ropes, landings, etc., were purchased and acquired by Agatha E. Evans "with money that she received from the United States government as payment for her interest in said Nez Perce Indian Reservation which she owned by reason of being a member of the tribe of Nez Perce Indians." There is evidence in the record sustaining this finding and it necessarily follows that the property thus acquired became the separate property of Agatha E. Evans. She caused the ferry to be operated from 1894 until July 15, 1900, at which time she and her husband entered into a parol agreement with the plaintiff, W. M. Evans, for the sale to him of all rights therein and a part of the purchase price was paid and the plaintiff was thereupon let into the possession of all said property. It was agreed that plaintiff should operate the ferry in the name of Agatha E. Evans until the balance of the purchase price should be paid, and that thereupon he should receive a deed from her and her husband for the property. On January 16, 1902, the deed was executed and delivered to plaintiff and he took out a ferry license for that year in his own name. During the years from 1896 to 1899, inclusive, and the year 1901, the annual license was taken out in the name of Agatha E. Evans. December 15, 1900, a judgment was duly rendered and entered in the district court in and for Nez Perce county, in favor of defendants. Geo. H. Kester and W. F. Kettenbach and against J. H. Evans, for the sum of $ 660.78, and on August 2, 1902, execution issued for the collection of said judgment, and acting thereunder, the defendant sheriff levied upon the ferry in question and noticed the same for sale. It is to restrain such sale that this suit was instituted.

No express franchise was ever granted anyone by the board of county commissioners authorizing the construction, maintenance, or operating this ferry, but it is vehemently contended by counsel for appellants that a franchise was acquired by prescription, and that such franchise became community property and was liable for the judgment under which execution issued. There is a great diversity of opinion among the American authorities upon the question of adverse user maturing into title as against the state or franchise granting power. The view we take of the matters here in controversy makes it unnecessary for us to pass upon this point, for the reason that if appellant is correct as to his position, this prescriptive right and title is the legitimate issue and profit arising from the investment of the separate property of Agatha E. Evans, and not liable upon execution against her husband. (Rev. Stats., sec. 4479.) It would naturally grow out of the investment and continued user of the separate estate of the wife, which could not have ripened into a right or title without the investment and user of property which was necessary to the inception of such right and its maturity into a vested estate. On the other hand, if no such right can arise by prescription, no franchise was ever acquired, and Agatha E. Evans was simply exercising the privileges incident to a ferry franchise by sufferance of the franchise granting power. In such case, upon a sale of the ferry the purchaser would take no greater estate than she possessed, and he would likewise be without a franchise. If he has no franchise, then he is without the protection of the one mile limit both up and down the stream from the site of his ferry which constitutes the only real value in such a grant. (Rev. Stats., secs. 1080, 1130.)

The right to collect tolls follows both the franchise and the license, while the license alone protects the licensee from liability to fine under section 1128, Revised Statutes.

Counsel argues that under the authority of McDonald v Rozen, 8 Idaho 352, 69 P. 125, decided by this court, a married woman cannot acquire separate property,...