Patterson v. Wollmann
| Decision Date | 10 June 1896 |
| Citation | 67 N.W. 1040,5 N.D. 608 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Emmons County; Winchester, J.
Action by Charles A. Patterson against Jacob Wollmann for injunction. From an order denying a temporary injunction plaintiff appeals.
Boucher & Philbrick, for appellant.
F. H Register, for respondent.
The plaintiff is seeking to restrain the defendant from operating a ferry between Winona, in Emmons County, and Ft. Yates, in Boreman County, in this state. The appeal is from an order denying a motion for a temporary injunction. The application for such injunction was made upon the pleadings. We must therefore assume that all the facts set forth in the answer are true, and also those which appear upon the face of the complaint, and are not denied. The merits of the whole case are really before us. If the plaintiff is not, upon the pleadings as they stand, entitled to the temporary injunction prayed for, it is conceded that he must ultimately fail in his action. He claims an exclusive right as against the defendant to operate a ferry between the points named, under a ferry franchise granted to him for a period of years by the board of county commissioners of Emmons County, within whose territorial limits one of the landing places is located. It is settled law that the right to operate a ferry is not common to all citizens. It is a franchise emanating from the sovereign power. In the absence of a title based on prescription, on one can lawfully maintain a ferry without authority from the state. Appeal of Douglass, 118 Pa. 65, 12 A. 834; Mills v. St. Clair Co., 49 U.S. 569, 8 How. 569, 12 L.Ed. 1201; McRoberts v. Washburne, 10 Minn. 23 (Gil. 8;) Stark v. Miller, 3 Mo. 470; Power v. Village of Athens, 99 N.Y. 592, 2 N.E. 609; Bridge Co. v. Paige, 83 N.Y. 178; Conway v. Taylor's Ex'r, 66 U.S. 603, 1 Black 603, 17 L.Ed. 191. It is upon this principle that the territorial legislature enacted sections 1361-1369, Comp. Laws, which were in force at the time the plaintiff received his grant of the ferry franchise on which he bases this action for an injunction. Under these sections power is vested in boards of county commissioners to grant to the highest bidder for a ferry privilege at a particular place a ferry lease for a term of years not exceeding 15, to be fixed by the board. They further declare that it shall be unlawful for any person to establish, maintain, or run upon any waters within the territory (now state) any ferry upon which to convey, carry, or transport any person or property for hire or reward without first having obtained a license as therein provided for. The ferry lease under which defendant attempts to justify his running of a ferry between the same points between which plaintiff is operating his ferry was granted by the board of county commissioners of Morton County. Neither landing place is within that county. Nor can it be claimed that the board of county commissioners of that county have any power to grant a license to run a ferry between points one of which is within Boreman County merely because the latter county is attached to Morton County for judicial purposes. Boreman County being an unorganized county, the license to be valid, must be issued by the secretary of state. Comp. Laws, § 1364. We are therefore not called upon in this case to settle the question whether, when the board of county commissioners of an organized county has granted a ferry franchise to a citizen between two points one of which is within that county and the other within another county, the board of county commissioners of the latter county can subsequently, and during the life of such franchise, grant another ferry franchise between the same places. There is much force in the position that when the grant is once made it is no longer within the power of the same or any other board of county commissioners to grant another ferry franchise within two miles of the one previously granted. Section 1361, Comp. Laws, in terms declares that, when any ferry lease has been granted, no other lease shall be granted within a distance of two miles thereof across the same stream. But it is barely possible that the legislature merely intended to give each board of county commissioners control of the ferry privileges within its county, so that such board could grant the franchise to operate a ferry from any portion of the bank of a stream within such county to the opposite bank, but not from the opposite bank to the place within such county from which he was authorized to receive passengers. See Powers v. Village of Athens, 99 N.Y. 592, 2 N.E. 609, where the court say: "We think, from all this legislation, without referring to it more minutely, it is quite clear that the legislature intended to place the ferries on the one side of the river under the exclusive control of the city, and on the other side under the exclusive control of the village." See, also, Giles v. Groves, 12 Adol. and E. (N.S.) 721; Pim v. Curell, 6 Mees. and W. 234; Conway v. Taylor's Ex'r, 66 U.S. 603, 1 Black 603-630, 17 L.Ed. 191.
The plaintiff in this case stands, and must stand, upon the validity of his alleged franchise. If the privilege of operating a ferry between these points has been granted to him by the sovereign power, he may enjoin all persons from operating a ferry between such points to his injury, provided they are acting without authority of law. That an injunction will be awarded in such cases is recognized by all the adjudications. Appeal of Douglass, 118 Pa. 65, 12 A 834; Tugwell v. Ferry Co., 74 Tex. 492, 13 S.W. 654; Carroll v. Campbell 108 Mo. 550, 17 S.W. 884; Capital City Ferry Co. v. Cole & Callaway Transp. Co., 51 Mo.App. 228; Chard v. Stone, 7 Cal. 117; Walker v. Armstrong, 2 Kan. 198; Ferry Co. v. Wilson, 28 N.J.Eq. 537; 2 High, Inj. § 927; Conway v. Taylor's Ex'r, 66 U.S. 603, 1 Black 603, 17 L.Ed. 191. Nor is it necessary, to entile the owner to relief in equity, that the franchise should be an exclusive franchise in the sense that the grant of another similar franchise to be exercised and enjoyed at the same place would be void. The theory on which the low proceeds is that the defendant, who has no franchise, is acting in violation of law in operating a ferry without authority from the sovereign power, and that the owner of the franchise may complain of and restrain such illegal acts when they result in injury to his franchise, which in the eye of the law, is property. As to the one who is invading his rights without legal sanction, the franchise is an exclusive franchise, although the owner of it might not be entitled to any protection as against the granting of a similar franchise to another. There appears to be no controversy on this point. Appeal of Douglass 118 Pa. 65, 12 A. 834; Tugwell v. Ferry Co., 74 Tex. 492, 13 S.W. 654; Carroll v. Campbell, 108 Mo. 550, 17 S.W. 884, 19 S.W. 809; Tugwell v. Ferry Co., 74 Tex. 480, 9 S.W. 120-124. The franchise granted to the plaintiff was in terms exclusive, and the statute provides that no other franchise shall be granted within a distance of two miles. Comp. Laws, § 1361. It is this provision of the statute which allows, and indeed compels, the board of county commissioners to grant an exclusive franchise within the specified limits to the highest bidder, that is here challenged as obnoxious to section 20 of the constitution. That section declares that "no special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly, nor shall any citizen, or class of citizens, be granted privileges or immunities which upon the same terms shall not be granted to all citizens." We are clear that this section has no relation to ferry franchises. The construction we are asked by counsel for defendant to place upon this section would result in abridging the power of the state over a subject which has for more than two centuries been regarded as exclusively within the control of sovereign power. A ferry is a moving public highway upon water. The highway upon land meets at either shore with a physical obstruction in the shape of a stream of water. How shall this highway be carried over this stream? The solution of this problem is exclusively within the province of the sovereign power. In this country such power is exercised by the state legislatures. It rests with such bodies, subject to such constitutional restrictions as relate to the matter, to determine whether there shall be a bridge or an embankment of earth constructed or a ferry maintained to carry a highway over a stream. The ferry may be directly under public control or the sovereign power may authorize a person or corporation to maintain this portable highway. When the power is delegated, the grantee of the franchise discharges a public duty in operating the ferry; and in the discharge of that duty he exercises a privilege which the state may grant or withhold at pleasure. The franchise does not consist of the right to sail his boat upon the stream, or to moor it by the shore. It is the privilege of operating a floating highway, of establishing and maintaining a public thoroughfare over water, and of charging tolls for the facilities for passage so afforded. Whatever right is enjoyed by the citizen in this regard is derived exclusively from the sovereign power, which has full control over the whole subject. The state may exclude all persons from the business. It may run all ferries itself. The same exclusive right which it has over the subject of maintaining a highway over a stream by means of a ferry at any particular point it may vest in its grantee. That it would possess this...
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