State v. Faudre

• Decision Date: 14 November 1903
• Citation: 46 S.E. 269,54 W.Va. 122
• Parties: STATE v. FAUDRE.
• Court: West Virginia Supreme Court

46 S.E. 269

54 W.Va. 122

STATE v. FAUDRE.

Supreme Court of Appeals of West Virginia.

November 14, 1903

Submitted January 6, 1903.

Syllabus by the Court.

1. The state of Ohio has right to establish ferries on the Ohio side of the Ohio river, and to fix their charges for ferriage over that river from Ohio to West Virginia.

2. West Virginia cannot punish one who acts under a ferry franchise given by the state of Ohio to operate a ferry from its side of the Ohio river over that river, for charging one coming from Ohio more than is allowed by West Virginia law for ferriage over that river.

Error to Circuit Court, Mason County; F. A. Guthrie, Judge.

Bert Faudre was convicted of overcharge on a public ferry, and brings error. Reversed.

H. R Howard, for plaintiff in error.

The Attorney General, for the State.

BRANNON J.

Bert Faudre was indicted in the circuit court of Mason county for charging C. E. Winger ten cents for ferriage of himself from Gallipolis, in the state of Ohio, over the Ohio river, to the West Virginia side, contrary to the order of the county court of Mason county fixing five cents as the charge. The case was tried by the court in lieu of a jury, and the court found Faudre guilty, and fined him $10. As I understand the evidence, the defendant was operating the ferry under a ferry franchise conferred by the Virginia Legislature in 1796, and reenacted in 1819. He justified this charge under an ordinance of Gallipolis establishing a ferry "from the end of Court street," in that city, "across the Ohio river to the Virginia shore," and a license from the city to operate the ferry; the ordinance allowing the ten cents charge, he operating under this license also.

The Ohio is a great, navigable river dividing the states of Ohio and West Virginia, a public highway open to all. Unless an exception to the general rule, we must apply the general rule, which is that "a state has the right to grant the exclusive right to ferry from its shores across a navigable river between two states." 16 Am. & Eng. Ency. Law 1091; Cooley, Con. Lim. 731. "In the case of boundary rivers, like the Mississippi, a ferry franchise conferred by a single state is valid without the concurrent sanction either of Congress or of the state upon the opposite side of the river, or the right of landing beyond the limits of the state by which the grant is made." Gould on Waters, § 35; Conway v. Taylor, 1 Black, 603, 17 L.Ed. 191; Gear v. Bullerdick, 34 Ill. 74. To say that a state has not this right to give its people facility of departure would detract from its sovereignty and be of great detriment. A ferry need not own land on both sides. Conway v Taylor, 1 Black, 603, 17 L.Ed. 191. The point of departure is the seat, the base, the home, of the ferry. Sistersville Ferry Co. v. Russell, 52 W.Va. 356, 43 S.E. 107. "A ferry is in respect of the landing place and not of the water. The water may be to one; the ferry to another." 13 Viner, Abridg. 208 A; Conway v. Taylor, cited. Thus, as the Ohio ferry had a foothold presumably on the end of Court Street, Gallipolis, it was a lawful ferry. Under this rule no state can prohibit another from granting a ferry right. Under its franchise the boat can depart, and, the stream being a highway, it can navigate its waters, and it can land on the opposite shore, and cannot be prevented by the state on the opposite shore. It cannot land on private property without consent, but it has right to land at a public wharf, paying reasonable wharfage. In carrying persons and property it is engaged in interstate commerce, and its landing could not be prohibited or taxed, though it may be made to pay wharfage. The landing is a necessary part of the act. Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 5 S.Ct. 826, 29 L.Ed. 158; Cannon v. New Orleans, 20 Wall. 577, 22 L.Ed. 417; Newport v. Taylor's Ex'rs, 16 B. Mon. 784; Trans. Co. v. City, 107 U.S. 691, 2 S.Ct. 732, 27 L.Ed. 584. The right to have a ferry includes the right to land. The right to land is incidental to the right to navigate a public river. It is said that "the grant of a ferry franchise across a river between two states gives only the right to ferry from the shore of the state granting the franchise." 12 Am. & Eng. Ency. L. 1092; Weld v. Chapman, 2 Iowa, 524; Gear v. Bullerdick, 34 Ill. 74.

But it is said that these principles apply only where the boundary of the opposite states is the middle of the river, giving each state indisputable jurisdiction over the shore and half the river, and that such is not the case with the Ohio river, for the reason that when Virginia granted to the Union the Northwest Territory her grant conveyed the territory "situate, lying and being to the northwest of the river Ohio." Great difference of opinion has been expressed as to whether this reserved to Virginia jurisdiction to low or high water mark on the west side of the Ohio. In State v. Plants, 25 W.Va. 119, 52 Am.Rep. 211, it was held that "the jurisdiction of West Virginia is coextensive with the water while confined within its banks." In Ravenswood v. Flemings, 22 W.Va. 52, 46 Am.Rep. 485, it was held that "the bed, banks, and shores of the Ohio river are held by the state in trust for the public." This would give West Virginia title to the top of the bank on the Ohio side. The first Constitution of this state claims the state's jurisdiction to include "so much of the bed, banks and shores of the Ohio river as heretofore appertained to the state of Virginia"; whilst the second declared without reserve that the state "includes the bed, bank and shores of the Ohio river." But, of course, we have no more than Virginia had. Nor could the Constitution confer greater title than in law existed. In Bridge Co. v. Pt. Pleasant, 32 W.Va. 331, 9 S.E. 231, I expressed the opinion that our territory extended to the low-water mark. I cited Garner's Case, 3 Grat. 655, in support of this statement. In that case fourteen Virginia judges sitting in the general court were greatly divided, and delivered exhaustive opinions, the decision by the majority holding, in effect, that low-water mark was Virginia's western line. The actual decision imports that. So the Supreme Court of the United States has several times held. Handley's Lessees v. Anthony, 5 Wheat. 374, 5 L.Ed. 113, the great Chief Justice Marshall, a Virginian, delivering the opinion. In Indiana v. Kentucky, 136 U.S. 479, 10 S.Ct. 1051, 34 L.Ed. 329, and Henderson Bridge Co. v. Henderson City, 173 U.S. 592, 612, 19 S.Ct. 553, 43 L.Ed. 823, it was again so held. These cases involved the boundary line of Kentucky; but, as Kentucky was formed from Virginia after the grant of the Northwest Territory, she has the same western boundary, and these decisions apply. Kentucky has uniformly held the low-water mark. McFall v. Commonwealth, 2 Metc. 394, 396. Indiana likewise. Carlisle v. State, 32 Ind. 55. Ohio holds that her territory extends at least to low water, if not to the middle. Booth v. Shepherd, 8 Ohio St. 243.

The chief argument for the line of the top of the bank on the Ohio side is the definition of a river. "A river is a running stream of water pent in on either side by banks, shores or walls." "A fresh-water river, like a tidal river, is composed of the alveus, or bed, and the water, but it has banks instead of shores. The banks are the elevations of land which confine the waters in their natural channel when they rise the highest and do not overflow the banks; and in that condition of the water the banks and the soil which is permanently submerged form the bed of the river." Gould on Waters, § § 41, 45. For the other side it may be said that to confine Ohio to the top of the bank would deprive her of necessary state powers, such as the erection of wharves and other facilities, as well as police control of her border, and refuse to her necessary state power, and detract from her sovereignty. As will be seen in Handley's Lessees v. Anthony, cited, Chief Justice Marshall was influenced by considerations of great inconvenience to the new states that were to be formed out of this cession by Virginia. Virginia, by act of January 2, 1781 (10 Hen. St. 564), made it a condition of her grant that new states should be formed out of the territory granted, and it cannot be readily supposed that she intended to deprive such new states of the usual powers of states bounding on public rivers, and cramp their faculties by stopping their jurisdiction at the top of the river bank. It does seem to me that as the Constitution of the Union gives to the national Supreme Court jurisdiction in controversies between states, and its decision must be final, the rulings of that court must be accepted as law. That court has exclusive jurisdiction touching boundary between states. Virginia v. West Virginia, 11 Wall. 39, 20 L.Ed. 67. I shall not pursue this question, as I know that I can shed no more light upon it additional to that reflected by the great arguments in the cases cited. If the low-water line be the line, there can be no question that Ohio has the right to establish ferries on her shore and to fix rates from the Ohio to the West Virginia shore. We do not say that greater charge could or could not be made from the West Virginia shore to the Ohio shore, as it is not involved.

But we are not driven to say, as decision, whether State v. Plants is sound law. We can decide this case on another ground. After Virginia made the deed ceding to the republic the Northwest Territory, Congress passed the celebrated historic ordinance for the government of the territory "northwest of the river Ohio," providing that "the navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways...